ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 7 June 2019 DOCKET NUMBER: AR20160010242 COUNSEL REQUESTS: on behalf of the applicant Traumatic Service members’ Group Life Insurance (TSGLI) claim for loss of Activities of Daily Living (ADL) for 120 days. COUNSEL'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * applications for TSGLI Benefits * letter of support * TSGLI denial letters * photographs * medical documents * Power of Attorney FACTS: 1. Counsel states: a. The medical records address the specific cause of the applicant’s lower back injury which qualifies as a traumatic event and injury according to TSGLI Law. On 17 March 2007, the applicant was in Iraq and was engaged in repairing a Bradley fighting vehicle when he slipped on some grease, fell, and landed directly on the guide teeth of the vehicle's track. As result-of the fall, the applicant sustained lumbar and cervical disc ruptures with herniation and bilateral knee pain. The March 2007 fall and resulting injuries are the basis of this TSGLI claim and appeal. The applicant does not make a claim for hospitalization. The applicant’s loss of ADLs and corresponding injuries are supported by sufficient medical information and evidence to grant the applicant $100,000.00 TSGLI payment. b. The medical records contain notations from licensed medical providers illustrating ADL loss and a timeline of treatment. The applicant required physical and standby assistance to bathe and dress. The applicant commenced with physical therapy on 22 March 2007, while still in Iraq. Physical therapy focused on strengthening, stretching, and range of motion. Upon his return to the United States, the applicant began to undergo chiropractic manipulation at Darnell Army Medical Center for his injuries. As a direct result of the fall, the applicant needed assistance with both bathing and dressing in order to accomplish those activities safely for well over 120 consecutive days from the date of the accident. The ABCMR should consider the applicant’s claim based on medical evidence previously submitted, as well as additional documentation submitted with this appeal. The prior decision rendered is clearly erroneous due to the applicant's inability to dress and bathe independently with well over 120 days of ADL loss. Such restrictions qualify him for an award of $100,000.00 under TSGLI Law. c. The applicant’s injuries and ADL loss are well documented and supported by the medical evidence. This information addresses the specific injury to his back, and illustrates an extensive timeline of treatment - including a surgery and many months of medical treatment. Although not noted specifically at the time of event (except for slight references), captain (CPT) B and Dr. H supplemented the certification of inability to independently perform ADLs and testified the applicant, did in fact, need assistance with bathing and dressing. All other references have been produced by licensed medical providers, physical therapists, and other medical professionals or otherwise all the types of valid information referenced in the denial letter. The evidence also supports the applicant’s inability to bathe or dress independently for well over 120 days. These two activities are qualifying ADLs and the applicant was unable to perform them safely without physical and/or standby assistance from 17 March 2007 to 2 January 2008. The denial of the full award is arbitrary, capricious, and contrary to law, and unsupported by substantial evidence. The denial should be reversed on the basis that a preponderance of the evidence shows the applicant's inability to bathe and dress independently for well over 120 days of ADL loss. d. The standard of evidence in TSGLI cases is generally a "preponderance of the evidence" standard, meaning that if the evidence proves the Servicemember's claim is more likely true than not, they are entitled to benefits. However, we contend this standard is commonly misapplied by the agency in TSGLI claims and Servicemembers are held to a much higher standard of proof, and especially in "close call" situations. The TSGLI program does not establish an adversarial process - where the Government actively seeks to defend and diminish a Servicemember's claim. However, an adversarial approach by the Government towards TSGLI claimants seems to be the trend in how these claims are being administered. The applicant's claim is clearly meritorious based on the preponderance of the evidence. If the agency views this as a "close call" case, the agency should apply the "benefit of the doubt" standard, similar to how the VA handles benefit claims. e. The 5 February 2016, decision of the Army TSGLI Office to deny the applicant's appeal should be reversed and his claim for well over 120 days' loss of ability to independently perform two or more ADLs should be granted with an award of $100,000.00 or the maximum award the Board believes is justified by the evidence. This is a meritorious claim which should be awarded. We wish to avoid litigation of this matter in Federal District Court if the denial is upheld, which will only add delay and cause expense to the parties in reaching a final disposition of this case. If pressed to litigate this claim, in addition to the applicant’s claim for TSGLI benefits, we will seek attorney fees, costs, interest, and any other remedies the Federal Court deems appropriate. 2. On 22 January 2014, the applicant completed an Application for TSGLI Benefits. The application states: a. While on deployment to Iraq in 2007, he slipped and fell on a Bradley Vehicle Track in the motor pool. This caused a contusion, sacroiliac sprain of lumbago sacral joint, lesions on pelvic myalgia, myositis, slip disc (L-4), bulging disc (L-4, L-5), lumbago, fluid in the spine, and pars defection. He was not informed of the TSGLI program, which is why he did not apply immediately. b. On 17 March 2007, he was admitted to the hospital and was discharged on 20 May 2007. c. He had an inability to independently bathe from 17 March 2007 through 20 April 2007 (approximately 30 days) and required assistance getting in and out of the shower. d. He had an inability to independently dress from 17 March 2007 through 20 May 2007. e. The document was signed by a medical professional on 23 January 2014, attesting she did not observe the patient’s loss, but reviewed his medical records. 3. On 17 April 2014, his TSGLI claim was disapproved because his claim for the inability to perform ADLs due to traumatic injury (other than traumatic brain injury) did not meet the standards for TSGLI. The denial letter informed the applicant: a. To qualify, a claimant must have been unable to independently perform at least two ADLs for at least 30 consecutive days. The claimant is considered unable to perform an activity independently only if he or she requires at least one of the following, without which they would be incapable of performing the task: * physical assistance (hands-on) * stand-by assistance (within arm’s reach) * verbal assistance (must be instructed) b. Under TSGLI, hospitalization is defined as an inpatient hospital stay, which lasts for 15 or more consecutive days in a hospital or series of hospitals that is accredited as a hospital under the Hospital Accreditation Program of the Joint Commission on Accreditation of Healthcare Organization. This includes Combat Support Hospitals, Air Force Theater Hospitals and Navy Hospital Ships. c. He was advised of his right to appeal the decision within 1 year of the date of his denial letter. 4. The applicant retained counsel and signed a document authorizing him to represent him in his TSGLI claim on 22 November 2014. On 25 February 2015, on behalf of the applicant, counsel completed an Application for TSGLI Benefits. The application states: a. While on deployment to Iraq in 2007, the applicant slipped and fell on a Bradley Vehicle Track in a motro pool. The fall caused a contusion, sacroiliac sprain of lumbago sacral joint, lesions on pelvic myalgia, myositis, slip dics at L-4, bulging disc at L-4 and L-5, lumbago, fluid in his spine, and pars defects. b. The applicant was taken out of physical training and referred to orthopedic, chiropractic manipulation and physical therapy. He continued limited activities and restricted profile through 30 March 2014. c. He had an inability to independently perform the following ADLs from 17 March 2007 to 2 January 2008: * bathe (needed assistance to bathe and dry lower extremities and getting in and out of bathtub) * dress (needed assistance to dress lower extremities especially sock and shoes) d. The document was signed by a medical professional on 20 February 2015, attesting he did not observe the patient’s loss, but reviewed his medical records. 5. A letter from staff sergeant (SSG) P, in support of the applicant’s TSGLI claim, dated 23 February 2015, states: a. He was in the same platoon as the applicant when his back injury occurred. Although he was not his roommate, he lived close to him and on several occasions, provided assistance to him due to his injuries. He was also present when the injury occurred on Forward Operating Base Warhorse in Diyala Province, Iraq. They were working on the tracks of a Bradley fighting vehicle, which are similar to those on a tank and allow the vehicle to move forward or backwards. While the applicant was attempting to separate a section of track, he slipped on grease that is used to lubricate the tracks. The applicant became horizontal and came down directly on the guide teeth of the track It was the teeth that caused the injury to the applicant’s back. Almost instantly the applicant’s back bruised to a deep purple, almost black color and he was rushed off to receive medical attention. b. After the injury occurred, the applicant was highly immobile. He had issues getting in and out of bed, getting dressed or undressed on his own, carrying his gear, and moving about the Forward Operating Base. He was also not capable of carrying out his normal job as an infantryman, which led to him being assigned to man the radios in the Company Headquarters. On numerous occasions, he assisted the applicant with the tasks he could not do on his own whenever his actual roommate was not around. These tasks included, but were not limited to getting in and out of bed, getting dressed and undressed, and ensuring he had transportation around the Forward Operating Base due to him being medicated and unable to drive himself. c. He also assisted the applicant with getting in and out of bed since he had difficulty sitting up and standing on his own. He had to physically lift him and rotate his legs off of the bed. Then he would assist the applicant in standing which was a long and painful process for him. It was practically impossible for the applicant to bend over. He had to assist the applicant with putting on and taking off his pants and boots. Since the applicant was highly medicated, SSG P had to either drive him where he needed to go or ensure the applicant had a ride whenever he needed to go somewhere. 6. On 5 February 2016, his TSGLI appeal was disapproved. The denial letter states: a. After reviewing the claim and supporting documentation, they were unable to overturn the previous adjudication concerning claimed losses associated with ADLs resulting from his traumatic injury that occurred on 17 March 2007 in Iraq. b. The applicant’s medical record and documentation provided with his claim do not indicate, nor suggest, his injury rendered him incapable of utilizing adaptive behavoir or accommodating equipment to perform ADL in at least a modified independent manner prior to the 30 day milestone. Medical documentation shows six days after the traumatic event, the applicant was able to walk, stand, and fully bend forword, although with pain. Approximately one week later, the applicant returned to Texas for rest and recuperation leave under normal redeployment conditions. During this leave period, a chiropractic note shows he had normal range of motion of his back with some pain at the extremities, along with normal gait, normal stance, normal posture, and normal balance 19 days after the traumatic event. A person described in this manner would be able to dress, bathe, transfer, toilet, and perform the basic ADLs in at least a modifed independent manner using adaptive behavior and/or accommodating equioment as set forth in the program guidelines, c. The applicant has the right to apply to the Army Review Boards Agency if he disagrees with the decision. In addition to the administrative appeals process, he had the right to appeal this decision in federal court. 7. On 22 January 2019, the Army Review Boards Agency (ARBA) senior medical advisor provided an advisory opinion. He opined that, at 30, 60, 90, and 120 days after date of injury, the available evidence indicates the applicant was capable of performing all ADLs. The medical advisor noted limited impairment/no impact on the applicant’s ability to perform ADLs. A copy of the complete medical advisory was provided to the Board for their review and consideration. 8. On 24 January 2019, the applicant and counsel were provided a copy of the medical advisory for comment or rebuttal, but did not respond. 9. 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board determined that relief was not warranted. Based upon the medical advisory’s finding that the available evidence indicates the applicant was capable of performing all ADLs and the applicant failing to submit a rebuttal to those findings, the Board concluded that there was insufficient evidence to show that the applicant had a loss of loss of Activities of Daily Living (ADL) which would result in a claim being filed for Traumatic Service members’ Group Life Insurance (TSGLI). BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X X X DENY APPLICATION 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. 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. 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. The U.S. Army Combat-Related Special Compensation Office has been designated as the lead agent for implementing the Army TSGLI Program. The TSGLI Program was established by Congress to provide relief to Soldiers and their families after suffering a traumatic injury. 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. A service member must meet all of the following requirements to be eligible for payment of TSGLI. The service member must have: * been insured by SGLI at the time of the traumatic event * incurred a scheduled loss and that loss must be a direct result of a traumatic injury * suffered the traumatic injury prior to midnight of the day of separation from the Uniformed Services * suffered a scheduled loss within 2 years (730 days) of the traumatic injury * survived for a period of not less than 7 full days from the date of the traumatic injury (in a death-related case) 2. 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. The HRC official TSGLI website lists two types of TSGLI losses, categorized as Part I and Part II. Each loss has a corresponding payment amount. 3. Part I losses includes sight, hearing, speech, quadriplegia, hemiplegia, uniplegia, burns, amputation of hand, amputation of four fingers on one hand or one thumb alone, amputation of foot, amputation of all toes including the big toe on one foot, amputation of big toe only, or other four toes on one foot, limb salvage of arm or leg, facial reconstruction, coma from traumatic injury and/or traumatic brain injury (TBI) resulting in inability to perform at least two ADLs, hospitalization due to TBI, and genitourinary losses. 4. Part II losses include traumatic injuries, other than TBI, resulting in the inability to perform at least two ADL, which are dressing, bathing, toileting, eating, continence, and transferring, for 30 or more consecutive days and hospitalization due to a traumatic injury other than TBI. TSGLI claims may be filed for loss of ADL if the claimant requires assistance from another person to perform two of the six ADL 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. 5. Appendix B (Glossary of Terms) of the TSGLI Procedures Guide, dated September 2008, provides the following definitions: a. 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. Examples include: * military motor vehicle accident * military aircraft accident * civilian motorcycle accident * rocket propelled grenade attack * improvised explosive device attack * civilian motor vehicle accident * civilian aircraft accident * small arms attack * training accident b. Traumatic Injury: The physical damage to a living body that results from a traumatic event. c. External Force: A force acting between the body and the environment, including a contact force, gravitational force, or environmental force, or one produced through accidental or violent means. 6. Army Regulation 15-185 (ABCMR) states ABCMR 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. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error injustice by a preponderance of the evidence. It is not an investigative body. The Director or the ABCMR may grant a formal hearing whenever justice requires. ABCMR Record of Proceedings (cont) AR20160010242 0 7 1