IN THE CASE OF: BOARD DATE: 15 March 2019 DOCKET NUMBER: AR20160011742 BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :X :X :X DENY APPLICATION 2 Enclosures 1. Board Determination/Recommendation 2. Evidence and Consideration 1. IN THE CASE OF: BOARD DATE: 15 March 2019 DOCKET NUMBER: AR20160011742 APPLICANT'S REQUEST AND STATEMENT: The applicant requests correction of his military records to show he is entitled to supplemental payments totaling an additional $25,000.00 for a partially denied Traumatic Servicemembers' Group Life Insurance (TSGLI) claim for a loss of activities of daily living (ADLs) at the 30 day milestone. The applicant defers to counsel for all arguments and evidence. COUNSEL'S REQUEST AND STATEMENT: 1. Counsel requests correction of the applicant’s military records to show he is entitled to supplemental payments for a partially denied TSGLI claim for a loss of ADLs over a 30 day period. 2. Counsel states: a. The TSGLI office denied the claim and subsequent appeals for the applicant’s loss of ADLs due to traumatic brain injury (TBI) for 30 days. The finding is not consistent with the medical records, submitted statements, and severity of the injuries. b. Ignoring the statements and medical records is in error and an injustice. It is requested the decision be reversed and the requested benefits be provided, as the totality of the evidence requires. c. The denial of the applicant’s TSGLI claim is unjustified in light of statements and evidence in the medical records, which demonstrate he required standby and verbal assistance to perform at least two of his ADLs for over 30 days. The statements and medical records have been ignored or unjustifiably discounted, which makes the finding an injustice and error, especially under the low burden of proof for the preponderance of the evidence. Enclosure 2 d. Included with this application are all previous claims, evidence, appeals and denial letters, as well as the applicable law, and recent court decisions that affect how statements must be considered, specifically that they must be taken at face value should contradictory evidence not exist. THE BOARD CONSIDERED THE FOLLOWING EVIDENCE: 1. Application for correction of military records with supporting document(s): * Indiana Officer’s Standard Crash Report, dated 30 November 2007 * numerous medical bills * medical documents in excess of 100 pages * DD Form 689 (Individual Sick Slip), dated 21 October 2008 * Application for TSGLI Benefits, dated 25 March 2014 * Prudential, OSGLI office letter, dated 13 May 2014 * Proof and Acknowledgment of Representation, dated 25 July 2014 * Application for TSGLI Benefits, dated 25 July 2014 * course of treatment timeline, dated 10 September 2014 * Counsel’s letter to U.S. Army Human Resources Command (HRC), TSGLI office, dated 15 September 2014 * self-authored statement, dated 15 September 2014 * father’s statement, dated 15 September 2014 * nurse reviewer’s statement, dated 15 September 2015 * grandmother’s statement, dated 16 September 2014 * HRC, TSGLI office letter, dated 7 May 2015 * Counsel’s letter to HRC, TSGLI office, dated 26 May 2015 * HRC, TSGLI office letter, dated 26 May 2016 * TGGLI, A Procedural Guide * Code of Federal Regulations, Title 38 * U.S. District Court, Western District of Division, v. USA, Memorandum Opinion and Order * U.S. District Court, Western District of Division, v. USA Memorandum Opinion and Order * U.S. District Court for the District of , v. USA Opinion and Order Affirming, in Part, and Vacating, in Part, Agency Action * U.S. District Court, Western District of v. USA Memorandum Opinion * 2. Evidence from the applicant’s service record and Department of the Army and Department of Defense records and systems: * Oath of Office * DD Form 214 * advisory opinion, dated 28 March 2018 * ex parte letter, dated 5 April 2018 * Counsel’s advisory opinion rebuttal, dated 10 April 2018 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, and coma from traumatic injury 1. and/or traumatic brain injury resulting in the inability to perform 2 Activities of Daily Living. 4. Part II losses include traumatic injuries resulting in the inability to perform at least two ADL for 30 or more consecutive days and hospitalization due to a traumatic injury and other traumatic injury resulting in the inability to carry out two of the six ADL, which are dressing, bathing, toileting, eating, continence, and transferring. TSGLI claims may be filed for loss of ADL if the claimant is 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 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR begins its 4 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. DISCUSSION: 1. The applicant was commissioned a second lieutenant in the Regular Army on 28 May 2005. He served in Iraq from 20 September 2005 through 21 September 2006. 2. He was struck by a vehicle in a hit and run accident as he crossed the street as a pedestrian in Indianapolis, IN, on 30 November 2007. He suffered a serious head injury and was transported to Wishard Hospital for care where he was admitted on 1 December 2007 and discharged home on 4 December 2007. 3. He went to the Ireland Army Community Hospital emergency room on 8 December 2007 complaining of abdominal pain, constipation, and residual head pain from the accident-induced TBI. The clinical impression in the emergency room was TBI with altered mental status and right lower lobe infiltration with fluid. In addition, medical records indicate that upon being asked whether he was having any problems performing activities of daily living (such as dressing, feeding, grooming, bathing, or walking), the applicant responded “no.” 4. From Ireland Army Community Hospital he was transferred to the University of Louisville Hospital emergency room where he was admitted for observation. He was diagnosed with pneumonia. A computed tomography (CT) scan on 1 December 2007 showed a frontal lobe contusion and a CT scan on 8 December 2007 showed no fracture or midline shift. He was released home on 9 December 2007. 5. An Individual Sick Slip, completed at Ireland Army Community Hospital, Fort Knox, KY, dated 21 October 2008, states the applicant sustained head injuries and was in a coma for 10 days in December 2007. He must refrain from all contact sports. This form allowed for 30 days restriction, at which point he should schedule a follow-up. 6. On 25 March 2014, he completed an Application for TSGLI Benefits. The application states: a. He was struck by a rapidly moving automobile in Indianapolis, IN, on 30 November 2007 at 10:47 pm. As a result, he was immediately taken to the nearest medical center, Wishard Hospital, and remained in a coma. When he regained consciousness, he remained at the hospital until the doctors determined he was able to be transferred to Ireland Army Hospital in Fort Knox, KY, as he was stationed at Fort Knox, KY, at the time. b. On 8 December 2007, doctors at Fort Knox, KY transferred him to the University of Louisville Hospital for further medical analysis and following his discharge from the University of Louisville Hospital, he was returned to Ireland Army Hospital where he remained until 11 December 2007. c. Upon his discharge from Ireland Army Hospital, he was placed on convalescent leave at home where he required the continued assistance of his family to perform basic functions. He returned to duty in January 2008. After this incident, he sometimes experienced headaches, dizziness, and forgetfulness. To combat these issues, he often visited Ireland Army Hospital throughout the year for medical treatment until the end of 2008. d. He was hospitalized from 30 November 2007 through 11 December 2007. The reason for his hospitalization was TBI. He was in a coma from 30 November 2007 through 3 December 2007. e. The reason he was unable to independently perform ADLs was TBI. During the time he was in the hospital and immediately after his discharge, he was unable to perform his ADLs without the assistance of hospital staff and his family, particularly his grandmother and his father, who stayed in his home after his discharge from the hospital. The assistance in his recovery lasted until he was able to independently function in late December 2007. f. He had an inability to independently perform the following ADLs from 30 November 2007 through 2 January 2008 and required stand-by assistance from his family with these ADLs: * bathe * dress * transfer g. The specific stand-by assistance his family provided is not referenced on the form. It simply states his family assisted him with recovery from the TBI after his discharge from the hospital. h. The document was signed by a medical professional on 28 March 2014, attesting he did not observe the patient’s loss, but reviewed his medical records. a. 7. On 9 April 2014, he was honorably discharged due to unacceptable conduct after 8 years, 10 months, and 12 days of net active service. 8. On 13 May 2014, his TSGLI claim was disapproved because his claim for TBI loss did not meet the standards for TSGLI. a. Under TSGLI, TBI is defined as the inability to independently perform at least two ADLs for at least 15 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. Inability to perform two or more ADLs for at least 15 days must also be certified by a medical professional. His claim for the inability to perform ADLs due to TBI was not approved by his branch of service because medical documentation did not support his inability to perform ADLs for 15 days. c. His claim for coma was not approved because his loss did not meet the standards for TSGLI. To qualify for coma under TSGLI, you must have had a score of 8 or less on the Glasgow Coma Scale and the coma must have lasted for at least 15 consecutive days. The number of days includes the date the coma began and the date you recovered from the coma. Because evidence indicates his coma did not last for 15 consecutive days, his branch of service could not approve his claim. d. His claim for hospitalization was not approved because his loss did not meet the TSGLI standard. 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. The number of days includes transportation time from the site of the injury to the hospital, the day of admission, and the day of discharge. Because evidence indicates his hospitalization was not 15 consecutive days in length, his branch of service could not approve his claim. e. He was advised of his right to appeal the decision within 1 year of the date of his denial letter. 9. The applicant retained Counsel and signed a document authorizing him to represent him in his TSGLI claim on 25 July 2014. 1. 10. A second TSGLI application was signed by Counsel on 25 July 2014 and states: a. On 30 November 2007 in Indianapolis, IN, he was hit by a care while walking across the street. He went into a coma and suffered TBI and other injuries as a result of the accident. b. He was hospitalized at Wishard Hospital, Indianapolis, IN, from 30 November 2007 through 4 December 2007 and Ireland Army Hospital, Fort Knox, KY, from 8 December 2007 when he was transported to University of Louisiana Hospital, Louisville, KY on 8 December 2007 and remained there until 9 December 2007. c. The reason he was unable to independently perform ADLs was TBI. He suffered a TBI with traumatic subarachnoid hemorrhage, left epidural hematoma, left orbital fracture and laceration. He remained in the hospital for 5 days and was discharged to home to the care of his grandmother, J M . On 8 December 2007, she took him to Ireland Army Hospital emergency room for symptoms of right upper quadrant abdominal pain. He was transferred to the University of Louisville for TBI, right lower lobe pneumonia, and right upper quadrant abdominal pain. He remained there until he was discharged home to the care of his family on 9 December 2007. He suffered from imbalance, cognitive difficulties, to include confusion, generalized weakness, headaches, and abdominal pain. He was given convalescent leave until 2 January 2008. d. He had an inability to independently perform the following ADLs from 30 November 2007 through 2 January 2008 and required both stand-by and verbal assistance from his family with these ADLs: * bathe * dress * toilet * transfer e. He required stand-by assistance with showering and received verbal cues to assist with grooming. He required assistance to complete the task of dressing and stand-by assistance to ensure he didn’t fall. He required stand-by assistance to ensure he didn’t fall when going to and from the toilet due to unsteadiness and when walking. At times, verbal cues were given to tell him where to walk to. 8 f. The document was signed by a medical professional, T B _ on 15 September 2014, attesting she did not observe the patient’s loss, but reviewed his medical records. 11. Counsel’s letter to HRC, TSGLI office, dated 15 September 2014, states: a. He was retained by the applicant to appeal a TSGLI claim for a TBI leading to a loss of ability to independently perform at least two ADLs for over 30 days. b. On 30 November 2007, he was struck by a moving vehicle at a speed of 40 miles per hour while crossing a street in Indianapolis, IN. He was found unconscious by emergency medical services, who transported him to Wishard Hospital emergency room for emergency care. He was diagnosed with traumatic subarachnoid hemorrhage, left epidural hematoma, left orbital fracture, laceration and admitted to the intensive care unit. He remained in the hospital for 5 days then was discharged home to the care of his grandmother, J M on 4 December 2007. c. His grandmother drove him back to her home in Kentucky so she could care for him. On 8 December 2007, he was readmitted to the University of Louisville Hospital, Fort Knox, KY for TBI with altered mental status, abdominal pain, and right lower lobe pneumonia. He was then discharged home to the care of his grandmother and his father, O W on the next day. From 9 December 2007 through at least 2 January 2008, his father stayed with him until he was released to go back to work. His grandmother had to return home to care for her ailing mother. d. The applicant was unable to independently bathe, dress, toilet, and transfer without stand-by assistance and/or verbal assistance for a period of over 30 days. He was confused and unsteady as a result of his serious head injury. His family was there every day to stand-by and make sure he didn’t fall when he was walking or transferring. They were there every day to remind him how to perform even the simplest of tasks due to his cognitive impairment. e. His medical records have been reviewed by an independent registered nurse, T B . She has further confirmed the extent of the TBI as well as the impact that these injuries had on him. f. The attached exhibits, declarations, medical records, and other supporting evidence demonstrate the applicant is entitled to recovery of $50,000.00 under a. TSGLI coverage, for suffering a coma from traumatic injury and/or TBI resulting in inability to perform at least 2 ADLs at the 30th consecutive day of coma or ADL loss, but less than 60 days, which qualifies for $50,000.00. 12. The nurse reviewer, T B , provided Course of Treatment Timeline, dated 10 September 2014, which provides excerpts of his treatment notes. It states: a. His discharge summary from Wishard Hospital states he was admitted on 1 December 2007 and discharged on 4 December 2007. His discharge diagnosis/reason for admission was head injury after being struck by car. He presented to the emergency room with decreased mental status and was intubated. His head computed tomography (CT) shows a small left frontal contusion. An intracranial pressure monitoring device (ICP) monitor was placed and removed on the third day of his hospital stay. The ICP was normal throughout the hospital stay. He was extubated and began to follow commands and converse with staff. b. Occupational therapy progress notes, dated 4 December 2007 state the patient had no complaints of pain before or after the session. He was oriented to person, city, month, year, and appeared more awake and alert on this date. He sat up independently to eat breakfast and needed minimal cues to locate his fork as he was using his hands to eat French toast. He was stand-by assisted to ambulate to a satellite room to complete basic cooking and home management tasks. He needed minimal cues to correctly demonstrate doing a load of laundry. He appeared to be improving with overall mobility, but still had occasional loss of balance. Needs minimal cueing for simple home management of ADLs. He was recommended for hospital discharge to home with close family assistance. c. Physical therapy progress notes, dated 4 December 2007 state he had no new complaints and was sitting on the edge of the bed at arrival. He presented with a flat affect throughout the session. He followed all commands and answered all questions appropriately. He ambulated with stand-by assist and contact guard assistance. He had an unsteady gait and 2-3 episodes of loss of balance for only a few seconds at a time. He performed a balance activity throwing a ball at target while performing single leg stance and was able to maintain only a few seconds at a time. His ambulation stability was improved but still with unsteady gait. He was deemed okay to be discharged home, but needed 24 hour supervision. d. Ireland Army Community Hospital emergency room notes, dated a. 8 December 2007, state his chief complaint was right upper quadrant pain that started 3-4 days prior. The clinical impression was TBI with altered mental status, right lower lobe infiltration with fluid (pneumonia), and abdominal pain. He was transferred to the University of Louisville Hospital. e. University of Louisville Hospital emergency room notes, dated 8 December 2007 state he was transferred from Ireland Army Community Hospital with a complaint of abdominal pain and difficulty passing stools. He was struck by a vehicle 1 week ago and incurred a head injury. He was diagnosed with pneumonia and admitted for observation. f. He was discharged from University of Louisville Hospital the next day, on 9 December 2007, but there is no discharge summary available. g. Ireland Army Community Hospital notes, dated 13 December 2007, state the applicant made an appointment for evaluation for a physical profile and convalescent leave after surgery in Louisville. He was found to have a non- productive cough, was awake, alert, oriented to time, place and person, but appeared to be slightly confused about past events. A CT scan showed a resolving brain injury. He would be placed on convalescent leave and receive a referral to neurology for possible placement into a TBI program. h. He received convalescent leave from 13 December 2007 through 2 January 2007. i. Ireland Army Community Hospital Internal Medicine Clinic notes, dated 23 January 2008, state the applicant’s visit was due to dizziness and vomiting in the morning which began when he went back to work where he was on light, administrative duty. He does not have blurred vision, but some headaches. He was requesting a physical profile to allow him to come into work at 0900, stating he did not have the symptoms if he can sleep in. The doctor annotated he would update the referral for this. j. An Individual Sick Slip, dated 21 October 2008, states this patient sustained head injuries and was in a coma for 10 days in December 2007. He must refrain from all contact sports for 30 days. 13. On 15 September 2014, the applicant provided a self-authored statement with his application. It restates many of the facts listed on his application pertaining to the accident and his hospitalization. Additionally, he states he doesn’t remember much because of his head injury. He remembers feeling sick with headaches after he got home from the hospital and that’s when he went 1. back to the hospital in Louisville. He remembers his grandmother and father helping him with bathing, dressing, getting back and forth to the bathroom, and his grandmother stood by him when he was walking to make sure he didn’t fall. 14. On 15 September 2014, the applicant’s father, O W , provided a statement. It states he and his mother helped his son, the applicant every day with bathing, dressing, toileting and transferring. a. His son’s grandmother left to go home and care for her mother on 9 December 2007 after his second discharge from the hospital. He didn’t leave his son until the first week of January 2008, when he was ready to go back to work. b. When caring for his son, he noticed times when his son couldn’t remember what to do and he was drowsy from the medications. They always had to keep him in focus or he would end up in a room he wasn’t supposed to be in. They would stand-by when he was bathing and anytime he was in the bathroom. They were worried he would slip and fall or lose his balance while on the toilet. When he was walking, they made sure he got to the right place and was stable. When he went outside to appointments, he needed to be reminded he needed a coat and he could never complete his dressing. He would get started, then decide he didn’t want something buttoned and we would remind him that he did. 15. The nurse reviewer, T B , provided a statement 15 September 2014. It states she reviewed the applicant’s medical records and related correspondence pertaining to the traumatic event on 30 November 2007. a. A review of his records confirm he suffered severe head injuries after he was hit by a moving vehicle. He was unconscious at the scene and transported via ambulance to Wishard Hospital emergency room. He was sedated and intubated, then transferred to the intensive care unit. His diagnoses included traumatic subarachnoid hemorrhage, left epidural hematoma, left orbital fracture, and laceration. During his 5 day hospitalization, medical staff reported cognitive impairment, unsteady gait, and placed him at a high risk for falls. b. He was discharged home to the care of his grandmother for around the clock supervision. He was also instructed to follow up with neurology for TBI treatment. He went to the Ireland Army Community Hospital on 8 December 2007 with complaints of right upper quadrant pain and inability to pass stools. He was transferred to University of Louisville Hospital for further care and was treated for TBI with altered mental status, abdominal pain, and right lower lung pneumonia. He was discharged home to the care of his grandmother and father on 9 December 2007. a. c. He required stand-by assistance due to imbalance and verbal reminders due to cognitive impairment and confusion as a result of his head injury. He received assistance with bathing, dressing, toileting, and transferring until he went back to work in January 2008. All of the assistance he required is reasonable given the severity of his injuries for the period specified. He would have been unable to perform the ADLs of bathing, dressing, toileting, and transferring on his own in a manner deemed safe without the assistance of his family. 16. On 16 September 2014, the applicant’s grandmother, J M , provided a statement. It states when she was called the night of the accident, they didn’t expect for him to live. She came the next day and after he was discharged to her care, she drove him back to Kentucky where she could care for him. a. She helped him every day with bathing, dressing, toileting, and transferring. She took care of him from the time he was initially hospitalized up until 9 December 2007, when she had to go home and care for her mother who was diagnosed with dementia. b. When she was there with her grandson, she helped him on a daily basis. He was really a mess. She couldn’t understand why he was released so early. Basically, he had just come out of a coma. He was confused, in pain, couldn’t eat, felt dizzy, and struggled to get in and out of bed. He could walk, but was very weak and unsteady on his feet. c. He would be doubled over in extreme pain which got progressively worse. He started feeling sick again just a few days after being home so she called the Ireland Army Hospital and they told her to bring him in. His eye was messed up and he was confused. They kept him overnight for observation at Ireland Army Hospital. d. She had to do everything. He was totally incapacitated and unable to assist himself. She had to help him get to the bathroom because he wasn’t steady and couldn’t remember anything. She helped with dressing and standing- by when he was in the bathroom or shower. He needed assistance with everything. To this day, he doesn’t remember a lot of things, which alarms her. 17. On 7 May 2015, HRC TSGLI office denied the applicant’s appeal after reconsidering his request. 1. a. His request was denied because the provided medical documentation did not indicate his loss met the TSGLI minimum standard. The statements provided by his father and grandmother were reviewed, but the medical documentation did not indicate his injury rendered him incapable of performing the ADLs of bathing, dressing, toileting, or transferring that are covered by TSGLI standards for 15 consecutive days or greater. b. An assessment, dated 8 December 2007, asked if the applicant had any problems performing his ADLs, such as dressing, feeding, grooming, bathing, or walking. The response was no. If the Soldier is able to perform the activity by the use of accommodating equipment/adaptive measures, such as a personal digital assistant, can, crutches, wheelchair, etc., then the Soldier is considered able to independently perform the activity. 18. On 26 May 2015, Counsel again appealed to the HRC, TSGLI office for reconsideration, stating disagreement with the prior findings that the applicant did not require assistance for his ADL losses due to TBI for over a 30 day period. He depended on the hospital, his grandmother, and his father for required assistance with transferring throughout the home, bathing, dressing and toileting. a. In the denial letter, the sole basis for denial is the specific claim that in an assessment from 8 December 2007, he did not have any problems performing ADLs. In light of the applicant’s subsequent emergency room admission on 8 December 2007, Counsel asks how much weight can be given to one ADL note? b. After his discharge from the hospital on 8 December 2007, there are few medical records within the claimed ADL loss period since the applicant was at home recovering. This is not uncommon for this particular type of TBI and a lack of records cannot be equated to a lack of required ADL assistance. c. Also, in further review of this appeal, Counsel would like binding court decisions on the TSGLI administrative process in which the court found claims to have been denied in an arbitrary and capricious manner, to be considered. As in those cases, the applicant’s medical records do not conclusively deny the ability of ADL assistance. 19. On 26 May 2016, the HRC, TSGLI office partially approved his appeal. After reviewing the claim and supporting documentation, the award of benefits for loss of ADLs associated with TBI for the 15 day milestone, but not greater than 30 days was approved. Payment for the loss was $25,000.00. 1. a. The claim was only partially approved because his medical record documented the CT of the head on 9 December 2007, 10 days after the traumatic event, showed an evolving intraparenchymal hemorrhage and subdural hematoma. It is reasonable to assume that he required assistance with bathing, dressing, toileting, and transfer per program guidelines for the first 15 days following the traumatic even based upon the nature and severity of the TBI. b. However, his medical record and the nature of this injury do not indicate this injury rendered him incapable of utilizing adaptive behavior or accommodating equipment to perform ADLs in at least a modified independent manner prior to the 30 day milestone. Therefore, this injury does not qualify for payment for the 30 days or beyond. 20. The Army Review Boards Agency (ARBA) senior medical advisor provided an advisory opinion on 28 March 2018, which states: a. The applicant is requesting approval of TSGLI benefits for loss of ADLs for 30 days as the result of TBI incurred in a motor vehicle accident on 30 November 2007. The senior medical advisor noted the applicant was crossing a four lane city road with significant traffic at 10:42 at night, not in the crosswalk, and wearing dark clothing when he was struck by the car in a hit and run accident. b. The emergency room evaluation after the accident shows: * head and brain CT without contrast (30 Nov 2007) – heterogeneous attenuation within the anterolateral left frontal lobe including some areas of hyperintensity; most likely a combination of contusion and subarachnoid blood while the areas of hypodensity are present edema * no acute fractures * spine cervical CT without contrast (30 Nov 2007) – no radiographic evidence of acute cervical spine injury * chest x-ray frontal (30 Nov 2007) – endotracheal tube terminates above the carina, pointing towards the right main stem; consider repositioning; no pneumothorax; clear lungs; no displaced rib fractures * pelvis and abdomen CT with contrast (30 Nov 2007) – CT of the abdomen with contrast, CT of the pelvis with contrast shows no CT evidence of significant abdominal trauma * laboratory studies (30 Nov 2007) at 11:20 pm with negative toxic drug level screen but positive (high) blood toxic substance – ethanol level 111 (or 131) mg/dL (normal or negative (0-9)). * c. The senior medical advisor noted the applicant was intoxicated (alcohol) at the time of the accident. d. The applicant’s admission from the emergency room to the hospital transpired past midnight, thus on 1 December 2007. He was intubated and sedated with a combination of Fentanyl and Propofol continuous infusion. Titration is per sedation protocol. e. Head and brain CT without contrast on1 December 2007) shows: * stable heterogeneous attenuation within the anterolateral left frontal lobe, with the hyperdense areas likely representing contusion and subarachnoid blood with hypodense areas representing edema * interval development of multiple hyperintense punctate and linear foci within the right cerebellum, likely represent intra axial hemorrhage versus shear injury. * new hyperdense foci within the lateral margin of the Sylvian fissure, probably the frontal operculum, likely represents parenchymal contusion versus subarachnoid blood * interval placement of intracranial catheter with tip in right frontal lobe f. Spine cervical magnetic resonance imaging without contrast done on 2 December 2007 – unremarkable MRI of the cervical spine. g. The applicant was extubated/removed from sedation and ventilator on 2 December 2007. His first full day post extubation and post-sedation was 3 December 2007. h. Occupational therapy assessment notes dated 3 December 2007 shows the patient was sleeping on arrival. The patient was oriented to self and “hospital” with cues and knew year but was unable to state the city he is in and what city he is from. The patient also spoke random comments: “The emails are on the wall.” Upper extremity: within functional limits. ADLs: set up with multiple cues to correctly place socks, declined further activities. i. Physical therapy initial evaluation on 3 December 2007 shows the patient was intubated and extubated on 2 December 2007 with no pain at this time. Range of motion: WNL x 4 extremities. Strength: WNL x 4 extremities. Cognition: A&O x 1 (person). He knows he’s in the hospital, current year and month, current president. The patient is lethargic throughout the session (asleep on arrival and initially difficult to awaken). When given his food, the patient initially attempted to cut his meat with a fork and a spoon. He requires cues to a. find the knife. The patient is able to use properly, but cut off very large piece of meat and ate it before cutting into smaller, safer bites. He was impulsive with mobility. Bed mobility was supine to sit-standby assist. Transfers: sit to stand – with contact guard assist. Balance: sitting – static good; standing-static – close standby assist, dynamic minimal-moderate assist. Ambulation: Ambulates 200’ with contact guard assist, unsteady gait, 3-4 episodes of loss of balance requiring contact guard-minimal assist to correct. Assessment: Good tolerance of treatment. The patient is still lethargic; good strength but unsteady with all mobility. He demonstrated decreased safety awareness and short term memory impairments. Discharge recommendations: Anticipate that patient will progress quickly with mobility so will likely progress past the point of needing acute rehabilitation. Recommend 1 more day hospital stay and then physical therapy to reassess patient’s mobility in the morning. Patient will likely need 24 hour supervision for several days. j. The speech pathology evaluation note dated 3 December 2007, states the patient is oriented to month, year, place, city, state, person, date of birth, and age. The patient had no difficulty with providing personal information about himself and his work. He answered simple yes/no questions with 100 percent accuracy. He followed simple one step directions with no difficulty, but had difficulty to follow two step directions and required repetitions. He had intact long term memory, however minimal difficulty with short term memory. He had minimal word finding difficulty. He used sentences to express himself. He comprehended simple sentences with noted difficulty with figurative language and complex sentence structure. He had mild-moderate deficits in problem solving and reasoning. He had good speech intelligibility. Impression: he had a mild-moderate receptive and expressive language deficit. He had no noted dysarthria or apraxia. k. The last day of the applicant’s hospitalization, hospital day 5 and his discharge date was 4 December 2007. l. A speech pathology note dated 4 December 2007 states: Briefly seen this am for continued speech and language therapy. Patient stated that he was going home. Patient in bed, awake and alert. No complaints of pain. Patient oriented to self, place, date, month and year. Patient with minimal difficulty with short term memory and recall. Patient with minimal difficulty with problem solving and reasoning. Patient greatly improved since yesterday. Suspect patient might require minimal to moderate assistance with higher cognitive functioning such as finances and work related area. Recommend outpatient speech therapy on discharge from hospital. a. m. An occupational therapy progress note dated 4 December 2007, states: Patient had no complaints of pain before or after session. Patient was oriented to person, city, month, and year. Appeared more awake and alert this date. Patient was independently supine to site to eat breakfast. Patient needed minimal cues to locate fork as patient was using his hands to eat French toast. Patient was set up to don sock. Patient was standby assist contact guard assist to ambulate to satellite room to complete basic cooking/home management tasks. Needed minimal cues to correctly recall steps for a simple meal, was able to locate correct ingredients in the cabinets. Patient needed minimal cues to correctly demonstrate doing a load of laundry (standby assist for dynamic standing balance when placing clothes in washer). Patient returned to room with standby assist/contact guard assist and was left in supine. Patient tolerated session well. Appears to be improving with overall mobility but still has occasional loss of balance. Needs minimal cueing for simple home management ADLs. Recommend discharge to home with close family assist and outpatient occupational therapy for higher level ADL activities. n. A physical therapy progress noted dated 4 December 2007, states the patient had no new complaints at this time. He presented with flat affect throughout session. Follows all commands and answers questions appropriately. Sit to stand with standby assist. Patient ambulates total of 100’ with standby assist-contact guard assist. Unsteady gait and 2-3 episodes of loss of balance requiring contact guard assist to correct. Patient performs single leg stance (B). Able to maintain balance for only a few seconds at a time. Performs balance activity throwing ball at target while performing single leg stance and able to maintain only a few seconds at a time. Patient returns to room and supine in bed at end of session. Assessment: Good tolerance of treatment. Patient’s ambulation stability improved this date but still with unsteady gait. Patient ok to discharge home but needs 24 hour supervision. o. The discharge summary dated 4 December 2007, states the date of admission was 1 December 2007 and date of discharge was 4 December 2007 with a discharge diagnosis of head injury. Reason for admission: 24 year old male pedestrian struck by car. He presented to the emergency room with decreased mental status and was intubated. Head CT showed a small left frontal contusion. An ICP (intracranial pressure) monitor was placed. The ICP was normal for the entire hospital stay. His ICP monitor was removed on hospital day 3. He was extubated and began to follow commands and converse with staff. Physical therapy was consulted who recommend home with 24 hour supervision. Occupational therapy, physical therapy, and speech therapy recommended discharge to home with outpatient therapy. Discharge diet: Regular. p. The applicant presents to Ireland Army Community Hospital emergency room with abdominal pain at 1:16 PM on 8 December 2007. He is transferred to the University of Louisville Hospital emergency room for evaluation and overnight admission for observation. q. Medical Record Supplemental Medical Data – Nursing Note dated 8 December 2007 with neurological (alert, oriented to time, oriented to place, oriented to person); Barriers to learning: No. Any nutritional concern that you wish to discuss? Yes. Any problems performing your activities of daily living (activities such as dressing, feeding, grooming, bathing, or walking): No. Pupils (PERRLA (pupils equal round reactive to light and accommodation), brisk). Motor: normal range of motion (moves slow). GI: soft, guarding. Resp/Airway: non-labored breath sounds: normal. Skin temperature: warm. Skin Moisture: dry. Skin Color: pink. Capillary refill: brisk (<2 sec). Pulses: right and left radial and pedal. Cardio – regularly. r. Chest x-ray series dated 8 December 2007 for right lower quadrant (RLQ) abdominal pain. No definite fractures or evidence of pneumothorax or pneumoperitoneum. No evidence of mediastinal hemorrhage. Density at the posterior right lung base is only minimally evident on current exam. s. Electrocardiogram (ECG), dated 8 December 2007 – sinus bradycardia at 59 beats per minute, otherwise unremarkable. t. CT scan of pelvis and abdomen with contrast on 8 December 2007 for RLQ pain after trauma – focal right lower lobe consolidation representing atelectasis or pneumonia. No focal abnormalities are seen within the liver, kidneys, spleen and pancreas. No other abnormal masses or fluid collection are identified. There are no other significant bony abnormalities. u. CT scan head without contrast on 8 December 2007 – low density lesion involving the left frontal lobe (soft tissue swelling over the left frontal bone…there appears to be a small piece of wire in the soft tissue in the area of swelling. There is an irregular low density lesion involving the left frontal lobe not causing any mass effect. There is no evidence of intracranial hemorrhage or extracerebral fluid collection. v. Ambulance Run Report – Fort Knox Emergency Services dated 8 December 2007, departed 11:36 pm with neuro – normal and extremities – normal upper and lower. “Presently alert, mildly agitated – upset with grandmother. Was ambulating in room. Requesting pain meds and phone…” w. Emergency Room consultation (University of Louisville Health Care) on 9 Dec 2007 at 0245 with unremarkable neurological examination on admission (sensory fully intact, i.e. includes balance and coordination). x. The ARBA senior medical advisor notes the applicant’s balance and coordination are neurologically intact. y. CT scan of head without contrast on 9 December 2007 at 1:47 am shows: 4.3 x 3 centimeter region in the anterior lateral aspect of the left frontal lobe is most compatible with an area of evolving intraparenchymal hemorrhage with associated edema. No midline shift or mass effect is evident. Thin subdural hematoma layering along the left parietal convexity and along the left temporal lobe with a maximum of approximately 2-3 millimeters. Small intraparenchymal contusion in the anterolateral aspect of the left temporal lobe. 4 millimeter hyperdense round structure in the pituitary fossa. This is nonspecific. z. CT scan of head without contrast on 9 Dec 2007 at 8:17 am done for mental status changes compared with prior study of 1:47 am. When compared to a prior examination, there has not been any significant interval change. The ventricles appear adequate in size and configuration and there is no shift of the midline structures. aa. On 9 December 2007, he was discharged from the University of Louisville Hospital after an overnight emergency room and/or brief inpatient stay. The ARBA senior medical advisor notes no discharge summary or report found. The applicant was discharged less than 24 hours after arriving at University of Louisville. Presumably the applicant was alert and oriented, oriented and ambulatory on discharge and not requiring any assistive devices (i.e. walker, cane, crutches, or wheelchair). There was NO significant medical reason for his reported INABILITY to independently perform two (especially 4) major ADLs. The University of Louisville Hospital would NOT have discharged him home in less than 24 hours with his recent head trauma history if he was significantly impaired in any way. bb. On13 December 2007, he had a General Surgery Clinic visit at Ireland Army Community Hospital for evaluation for physical profile and convalescent leave from surgery in Louisville. Notes show: “Headache is minimal…patient admits to inability to concentrate and feeling tired, falling asleep at work, denies HA, f/c/ns. Admits to cough but non-productive. States that he was constipated but now better. Medication: Levaquin. Oriented to time, place and person but appears to be slightly confused about past events. Forehead laceration well healed – sutures previously removed.” Neurological examination was unremarkable: “Assessment: Cerebral contusion – level of consciousness (LOC) > 24 hours without return to prior level. CT scan appears to show resolving brain injury – official read pending – will place on convalescent leave and refer to IM for neurology evaluation and possible placement into the TBI program. Post pneumonia – community acquired versus hospital acquired – seems to be improving on Levaquin – will refer to Internal Medicine for follow-up. Observation following motor vehicle accident – no other surgical issues identified at this time.” cc. A request for convalescent leave dated 13 December 2007, was granted from 13 Dec 2007 thru 2 Jan 2007 and signed by a general surgeon. The ARBA senior medical advisor noted that 4 days after his inpatient hospitalization the applicant was neurologically normal, including normal coordination, gait and stance. There was NO significant medical reason for his reported INABILITY to independently perform 2 (and especially 4) major ADLs. dd. 15 December 2007 is 15 days post injury. The applicant is on convalescent leave, reportedly at home with grandmother and/or father. See the applicant’s statement, grandmother’s statement and father’s statement later in this medical advisory for information on reported standby assistance and verbal cues provided. No medical reports or clinic visits noted or found in this period. ee. 30 December 2007 is 30 days post injury. ff. Internal Medicine Clinic visit on 7 Jan 2008, notes show Post-Concussion Syndrome – appears to be doing fine, no overt problems, will follow up as clinical indicated, his main concern is to get his physical profile updated. I will do this for him, follow-up 6-8 weeks and we will go from there. Follow-up sooner if needed. I encouraged him to get the records so he can put it into his military records. gg. Behavioral Health visit on 9 January 2008 for depressive symptoms last 2-3 months and feels guilty for ending a on and off relationship of 4 years. He reported difficulty falling and remaining asleep at night…decreased concentration level and appetite…symptoms consistent with anxiety and depressed mood…inability to separate appropriately from this relationship and continually thinks about her through the day. He reported recent usage of ethylalcohol as a coping mechanism…he denied any self or family history of substance abuse treatment. Assessment: Partner Relational Problem. Adjustment disorder with disturbance of emotions. Axis IV – Problems primary support group. hh. Internal Medicine Clinic visit on 23 January 2008 for addendum for physical profile. Physical findings: Neuro – non-focal, alert and oriented x 3, NAD (no apparent distress), pleasant. Assessment: Cerebellar contusion with concussion – in the recovery phase. He says he does not have any symptoms of vomiting or dizziness as long as he sleeps in and reports to work at 0900. Will update referral for this, RTC (return to clinic) if this does not help, will refer to neurology for formal statement about patient’s normal progression post motor vehicle accident for now does not appear symptoms are getting worse, will update labs. ii. On 13 March 2014 an Officer Elimination Case was approved by the Deputy Assistant Secretary of the Army (Review Boards). A prior Board of Inquiry found the applicant committed acts of personal misconduct in that he drove under the influence of alcohol in 29 September 2006… jj. The applicant had a Clinic visit on 25 March 2014 (Hohenfels, Germany) for the completion of TSGLI paperwork, the notes of which show “…patient reports that he was in a motor vehicle accident in Indiana in 2007 and states that he significantly significant head injury at that time and was in a coma for a few days and was hospitalized for at least 14 days. During that time he had difficulty with his activities of daily living but did not suffer permanent sequelae from the head injury and reported hematoma at the time. He has some patient records available with him and will be filling out the paperwork for the dates and time and what he is claiming. He states that he might have some memory issues but has not had any formal testing and is not interested in doing this at this time. He also will be moving back to the states in the next couple weeks…” and “…patient was struck by a vehicle on November 30, 2007 and spent several days in the intensive care unit in Indianapolis Hospital before he was transferred to the ward on 4 December 2007. He was subsequently transferred to the Army hospital in Fort Knox on 8 December 2007 and then sent to University of Louisville and discharged on 9 December 2007 according to paperwork provided. He was also put on some relief from 13 December 2007 until 2 January 2008. TSGLI paperwork completed and given back to patient. Review of medical records and completion of paperwork more than 40 minutes…” kk. The ARBA senior medical advisor notes the applicant apparently told the TSGLI certifying physician that he had been hospitalized for 14 days, which is incorrect, 4 + 1 = 5 days. Based on the records provided to him and what the applicant told him, the certifying physician was under the impression that the applicant admitted on 30 November 2007, transferred to the ward on 4 December 2007 and then ‘transferred’ (as an inpatient) from Indianapolis to Fort Knox Hospital and then transferred again to University of Louisville before being discharged on 9 December 2007. This would imply a 10-day inpatient hospitalization, portending a significantly more severe TBI than the single 4 day admission for TBI and a separate nonconsecutive 1 overnight for pneumonia/abdominal pain. ll. Prudential – Office of Servicemembers’ Group Life Insurance letter dated 13 May 2014, shows his TBI claim for TSGLI was not approved because it did not meet the standards for TSGLI defined as the inability to independently perform at least two ADLs for at least 15 consecutive days. His claim for coma was not approved because your loss did not meet the standard for TSGLI to qualify for coma you must have had a score of 8 or less on the GCS (Glasgow Coma Scale) and the coma must have lasted for at least 15 consecutive days. His claim for hospitalization was not approved because your loss did not meet the TSGLI standard, i.e. an inpatient hospital stay which lasts for 15 or more consecutive days in the hospital or series of hospitals. mm. HRC – Special Compensation Branch (TSGLI) letter dated 7 May 2015, states the Army TSGLI program office has reconsidered the decision of his previous claim and were are unable to overturn the previous adjudication. Loss Disposition code(s) used: TBI ADLs 15, 30 days: Code 3. Medical documentation provided does not indicate the member’s loss met the TSGLI minimum standard. nn. Counsel appealed the decision to HRC on 26 May 2015 and HRC TSGLI office partially approved the appeal on 26 May 2016, stating 10 days after the traumatic event showed an evolving intraparenchymal hemorrhage and subdural hematoma. It is reasonable to assume that he required assistance with bathing, dressing, toileting, and transfers per program guidelines for the first 15 days following the traumatic event based upon the nature and severity of this TBI. oo. The ARBA senior medial advisor noted the CT of the head report showing ‘evolving’ intraparenchymal hemorrhage and a subdural hematoma does NOT indicate the need for assistance with bathing, dressing, toileting and transfers. One CANNOT assume SPECIFIC functional abilities or inabilities with ANY clarity based on this single imaging report (or both CT scans of the head performed during the admission – with no significant changes noted). This FALLACIOUS assumption resulted in a favorable TSGLI determination for the applicant where the applicant clearly had an unremarkable neurological examination on 8 December 2007 and 13 December 2007 (prior to 15 days post injury) consistent with a clear ABILITY to perform his ADLs. pp. With regard to his initial TSGLI claim application in 2014 for TSGLI benefits for coma, a review of the medical records from Indianapolis notes that the applicant’s GCS was 11 on arrival 30 November 2007 decreasing to 7 prior to intubation/sedation due to combativeness. The ARBA senior medical advisor notes the criteria for coma CLEARLY state that it lasts 15, 30, 60 or 90 consecutive days. 30 November 2007 to 2-3 December 2007 was only 4 days. The applicant had a GSC of 11 on initial presentation dropping to 7 before sedation and intubation. At that point, he was heavily sedated (not comatose, but SEDATED), but briefly awakened (reduced medication infusion) on 1 December 2007 before extubation on 2 December 2007. qq. With regard to his initial TSGLI claim application in 2014 for TSGLI benefits for TBI loss of ADLs for 15 days, it is of note that the applicant’s initial claim did NOT include an INABILITY to toilet independently that was added to the second application (with counsel). rr. With regard to his initial TSGLI claim application in 2014 for benefits for hospitalization, the ARBA senior medical advisor notes he claimed an incorrect date of hospital discharge. He was discharged on 9 December 2007, not 11 December 2007. ss. The ARBA senior medical advisor also notes the physician ‘certifying’ the initial application included certification for ‘Inpatient hospitalization of 15 or more days’ (incorrect – 5 + 1 = 6 days over 10 days total) and ‘Coma of 15 or more days’ (incorrect – `3 days) leading one to question the validity of the claim(s). tt. The applicant’s second TSGLI application (with Counsel) differs from the initial application. The applicant CLEARLY did NOT meet the 15 day consecutive or even non-consecutive day requirement for inpatient hospitalization. The applicant’s request was denied because as outlined in the subsequent claim form filed out by counsel, the two hospitalizations together were 6 non consecutive days in length over a span of 10 days. uu. The applicant and Counsel assert that the applicant suffered 30 days (15 days implied) consecutive days’ loss of inability to independently perform 2 or more ADLs due to TBI. The listed medical history on the second TSGLI application is factually accurate, but the intensity, frequency, duration, and nature of the symptoms did NOT make the applicant UNABLE to perform ADLs. vv. The applicant’s personal statement dated 15 September 2014 was reviewed. It is of note that this history of the initial 2 weeks contrasts sharply with that provided to the certifying medical provider in March 2014. 7 years after the incident, recall of specific details of events over a 4 week period would be exceptional (especially after a head injury) for most normal people. ww. The applicant’s grandmother’s personal statement dated 16 September 2014 was reviewed. The ARBA senior medical advisor noted it was nice that his grandmother and father helped him with some aspects of his ADLs, but it was not medically or physically necessary. The applicant was able to provide a history prior to discharge from his first hospitalization and a history prior to his second hospital admission to nursing, physician and transferring personnel as well as admitting providers at the University of Louisville. The abdominal pain episode took place after the first and before the second admission, resolved by on or about 9 December 2007 (less than 10 days after the date of injury). The applicant DENIED any problems with ADLs on 8 December 2007 and had an unremarkable neurological examination on 8 and 9 December 2007 (other than agitation +/- related to grandmother and +/- related to his abdominal pain – likely his later diagnosed esophageal spasm). The applicant was seen for evaluation on 13 December 2007 (less than 14 days after date of injury) after the resolution of the abdominal pain and again demonstrated a NORMAL neurological examination, was NOT unsteady, was able to provide a history (i.e. he could remember), was NOT confused or disoriented, was NOT totally incapacitated, etc. The applicant DID have the ABILITY to perform his ADLs prior to 15 days post injury. xx. The applicant’s father’s personal statement dated 15 September 2014 was reviewed. Although the father mentions the applicant was drowsy from the medications, it is of note his medication was an oral antibiotic. No significantly psychoactive medications were prescribed. The ARBA senior medical advisor also notes that keeping an eye on someone or being nearby is NOT the same as physically standing within arm’s reach of someone every time the sit, stand, and walk. It was nice that his grandmother and father helped him with some aspects of his ADLs, but it was not medically or physically necessary. The applicant DID have the ABILITY to perform his ADLs prior to 15 days post injury. yy. With regard to the applicant checking the box he was unable to bathe independently, the ARBA senior medical advisor notes: “Describe assistance needed” is a restatement of the checked boxes on the form. The risk of falling while bathing is significantly decreased with the use of a shower chair. Most home showers are small enough that the applicant could easily steady himself on a wall or hold onto the water controls/knobs if needed. The applicant had NO impairment in the use of his hands, arms, legs or feet. Grooming is not a separate ADL. The applicant was CLEARLY able to shave (electric) – it’s NOT about the quality of the grooming, but the INABILITY to do it without help that is significant. No reason or rationale is provided to explain his alleged deficiencies. It was nice that his grandmother and father helped him with some aspects of his ADLs, but it was not medically or physically necessary. The applicant DID have the ABILITY to perform his ADLs prior to 15 days post injury. zz. With regard to the applicant checking the box he was unable to dress independently, the ARBA senior medical advisor noted: “Describe assistance needed” is a restatement of the checked boxes. The risk of ‘fall’ with dressing is significantly decreased, as well known to many older or elderly people, if you do it sitting down on a bed or chair. The applicant had NO impairment in the use of his hands, arms, legs or feet. Forgetting to button a button is NOT indicative of an INABILITY to DRESS independently. The applicant undoubtedly had t-shirts and (Army physical training shorts) shorts or long pants (Army physical training pants) without buttons or zippers. Why couldn’t he wear them? Why was the applicant UNABLE to put on a shirt, T-shirt, underwear, socks, pants, or shoes while sitting? No reason or rationale is provided to explain his alleged deficiencies. It was nice that his grandmother and father helped him with some aspects of his ADLs, but it was not medically or physically necessary. The applicant DID have the ABILITY to perform his ADLs prior to 15 days post injury. aaa. With regard to the applicant checking the box he was unable to toilet independently, the ARBA senior medical advisor noted: “Describe assistance needed” is a restatement of the checked boxes. The applicant was CLEARLY ABLE to get from laying down to sitting (in bed) and sitting to standing (from bed, toilet or chair) as demonstrated prior to his initial hospital discharge on 4 December 2007. He CLEARLY DEMONSTRATED the ability to ambulate 100’ on 3 December 2007 and 200’ on 4 December 2007 with minimal assistance (improving from 3 to 4 December 2007). He did NOT require on hospital discharge any assistive devices for movement, i.e. no wheelchair, no walker, and no cane. The applicant had NO impairment in the use of his hands, arms, legs or feet. If he can WALK independently, then he can TOILET independently, even with occasional imbalance, he can hold on or STEADY HIMSELF on the walls or doorways of the residence, bathroom, and sink to sit down and stand up from the toilet. If his balance was ‘that’ impaired, he COULD of requested on discharge from his first hospitalization (4 December 2007) or second hospitalization (9 December 2007) a cane, walker, or wheelchair for home use. It appears that neither he nor his grandmother and/or father requested it (with either discharge) because he was NOT significantly impaired in his ADLs, ambulation or balance. It was nice that his grandmother and father helped him with some aspects of his ADLs, but it was not medically or physically necessary. The applicant DID have the ABILITY to perform his ADLs prior to 15 days post injury. bbb. With regard to the applicant checking the box he was unable to transfer independently, the ARBA senior medical advisor noted: “Describe assistance needed” is a restatement of the checked boxes. The applicant was CLEARLY ABLE to get from laying down to sitting (in bed) and sitting to standing (from bed, toilet or chair) as demonstrated prior to his initial hospital discharge on 4 December 2007. He CLEARLY DEMONSTRATED the ability to ambulate 100’ on 3 December 2007 and on 4 December 2007 with minimal assistance (improving from 3 to 4 December 2007). He did NOT require on hospital discharge any assistive devices for movement, i.e. no wheelchair, no walker, and no cane. The applicant had NO impairment in the use of his hands, arms, legs or feet. If he can WALK independently, then he can TRANSFER independently, even with occasional imbalance, because with transfers he can HOLD ON to or steady himself on whatever he’s transferring from or to. If his balance was ‘that’ impaired, he COULD have requested on discharge from his first hospitalization (4 December 2007) or second hospitalization (9 December 2007) a cane, walker, or wheelchair for home use. It appears that neither he nor his grandmother and/or father requested it (with either discharge) because he was NOT significantly impaired in his ADLs, ambulation or balance. It was nice that his grandmother and father helped him with some aspects of his ADLs, but it was not medically or physically necessary. The applicant DID have the ABILITY to perform his ADLs prior to 15 days post injury. ccc. With regard to the medical professional’s statement dated 15 September 2014, the registered nurse certifying the subsequent application (with counsel) notes non-specific stand by assistance and verbal cues as stated by the applicant, grandmother and father for four ADLs to include dressing, bathing, toileting, and transferring. The applicant had NO impairment in the use of his hands, arms, legs or feet). He did NOT require on hospital discharge (either) any assistive devices for movement, i.e. no wheelchair, no walker, and no cane. The applicant DID have the ABILITY to perform his ADLs prior to 15 days post injury. The registered nurse’s analysis generalizes ‘physical and cognitive impairments’ and concludes they lead to loss of ADLs as documented by his medical providers (except those impaired ADLs are all within 5 days of the accident/injury. They are not documented at ~15 or ~30 days out. ddd. The ARBA senior medical advisor responds to Counsel’s questions from the 26 May 2015 TSGLI appeal to HRC (TSGLI). Counsel asks: In light of the ER admission on 8 December 2007, how much weight can be given to one ADL note on 7 December 2007? ARBA senior medial advisor notes the applicant was admitted for ‘abdominal pain’ and NOT for TBI though that was also an active diagnosis having occurred only 9 days earlier. The ADL note does NOT stand in isolation, but it is a SPECIFIC assessment of the applicant’s ability to perform ADLs. His ability to perform ADLs was clearly demonstrated prior to the discharge from the initial hospitalization on 3 and 4 December 2007. The 27 8 December 2007 ADL note clearly supports that pre-discharge assessment. He could have said ‘no’, but he did not because he was NOT unable to do his ADLs. The applicant DID have the ABILITY to perform his ADLs prior to 15 days post injury. eee. His ability to perform ADLs was clearly demonstrated prior to the discharge from the initial hospitalization on 3 and 4 December 2007. The 8 December 2007 ADL note clearly supports that pre-discharge assessment. The applicant’s neurological status, ambulation, and communication abilities on 8 December 2007 clearly demonstrate the he was ABLE to perform his ADLs. “Patient will likely require 24/7 supervision for several days” is NOT a statement implying inability to do ADLs. After any significant head injury, there is a small potential for sudden deterioration from a plethora of potential causes. He shouldn’t be left alone for a few days does NOT mean that he “requires” other care or assistance with ADLs. On 3 December 2007, one day after extubation he wasn’t very oriented. On 4 December 2007, the day of initial discharge he was. He was alert and oriented on the day of emergency room evaluation on 8 December 2007, as clearly documented in the medical records. He clearly WAS able to assess his ADL status on 8 December 2007 being home over 2 full days. The applicant DID have the ABILITY to perform his ADLs prior to 15 days post injury. fff. “Patient will likely need 24/7 supervision for several days” is NOT a statement implying inability to do ADLs. See pre-discharge Occupational Therapy assessment clearly documenting the ability to prepare a simple meal, wash clothes, and other ADLs. Episodes of loss of balance do NOT imply or indicate an INABILITY to perform ADLs. As his condition improved, three days later he would be expected to do them even BETTER than he did on the day of discharge. Additionally, he wasn’t admitted on 8 December 2007 for an inability to do ADLs. He was admitted for abdominal pain. His admission to the emergency room a few days later does NOT at all support a claim he was independently unable to perform ADLs. ggg. Counsel claims a single blurb from the medical records that presumably represents a quick and simple single question and answer from an incapacitated patient does not outweigh the other evidence and nature of the injury that indicate ADL assistance for at least two ADLs was required beyond 15 and 30 days. The ARBA senior medical advisor notes this is NOT just a ‘single’ blurb. The medical evidence CLEARLY outweighs the applicant’s (and counsel’s) claim of loss of two to four ADLs for 15 and/or 30 days. His ability to perform ADLs was clearly demonstrated prior to the discharge from the initial hospitalization on 3 and 4 December 2007. The 8 December 2007 ADL note clearly supports that 28 pre-discharge assessment. The applicant’s neurological status, ambulation, and communication/historian abilities on 8 December 2007 clearly demonstrate the he was ABLE to perform his ADLs. “Patient will likely require 24/7 supervision for several days” is NOT a statement implying inability to do ADLs. He was alert and oriented on the day of emergency room evaluation (8 December 2007) as clearly documented in the medical records. He clearly WAS able to assess his ADL status on 7 December 2007 being home over 2 full days. The 13 December 2007 clinic visit CLEARLY documents a normal neurological examination and correspondingly he was CLEARLY ABLE to perform ALL of his ADLs (at less than 15 days after injury). He clearly was NOT incapacitated. hhh. The ARBA senior medical advisor’s TSGLI related impressions are that a Line of Duty (LOD) investigation should have been conducted after the applicant’s motor vehicle accident. No documentation of an LOD investigation into the accident was found in the available records. This significant injury should have, in the opinion of this reviewer, undergone a LOD investigation for misconduct, particularly with a history episode of alcohol-related misconduct (i.e. the DUI). The preponderance of the medical evidence indicates that this event was alcohol related. The applicant did NOT meet TSGLI guidelines: inpatient hospitalization, coma, loss of ADLs (due to TBI) for 15 days, and/or loss (inability to perform) of two or more ADLs (due to TBI) at 30 days. The ARBA senior medical advisor does NOT recommend approval of the applicant’s request for TSGLI benefits. The applicant met medical retention standards for all conditions at the time of administrative separation/discharge. 21. The applicant and Counsel were provided a copy of the advisory opinion on 5 April 2018, and given an opportunity to submit comments. 22. Counsel rebutted the advisory opinion on 10 April 2018. The rebuttal states: a. He and his client maintain that, despite the advisory opinion, he meets the standards for the additionally requested benefits for loss of ADLs for the 15-30 day milestone. The advisory opinion does not contain an adequate evaluation of the record. In fact, the most important medical records in this case are discounted or ignored by the advisory opinion. Further, the opinion picks only portions of the statements to discount them, rather than focusing on the totality of the statements. b. The advisory opinion does not contain a full discussion or weighing of all the evidence, nor does it contain an analysis of the actual TSGLI ADL loss standards, particularly those for standby assistance and verbal assistance. The advisory opinion’s tone and focus appears to be to discredit the applicant. As 29 such, it appears to be biased and in line with a troubling pattern of ignoring the intensity and effects of a TBI that cannot be seen. c. The advisory opinion also ignores the TSGLI provisions covering ADL losses that require verbal cures and standby assistance. It discusses irrelevant material at length. In addition, it contains a cursory review of the statements and medial opinions and tries to muddy the waters with an irrelevant focus on alcohol use. Notably, although alcohol use is irrelevant, it is a common secondary issue to post-traumatic stress disorder with war veterans like the applicant. The focus on this point and other irrelevant points is consistent with the overall dismissive tone and language found throughout the advisory opinion. d. The sole issue in this case is whether the applicant meets TSGLI standards to allow benefits to be issued for a loss of at least two ADLs (requiring either standby or verbal assistance) due to TBI for 15-30 days. Also please note the applicant is not claiming physical assistance for any ADL, although the advisory opinion continually mentions what is “medically and physically necessary.” The discussion focuses on the applicant not requiring physical assistance and misses the requirements of verbal cues and standby assistance. e. The applicant required standby and verbal assistance for bathing, dressing, and transferring. He also required standby assistance for toileting. In the applicant’s case, only two of the listed seven ways of ADL assistance need to be demonstrated, and there only needs to be a small part of each ADL that requires assistance to meet the TSGLI guidelines. Standby and verbal assistance meet the ADL criteria for TSGLI benefits, and these seven types of assistance are not addressed adequately in the advisory opinion. This error and rigid assessment in the advisory opinion is not in accordance with the law and is in error, unjust, and should be corrected. f. The standard applicable in this case is of “substantial evidence”, meaning “[w]hen there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.” This statutorily mandated benefit of the doubt is of particular importance in reviewing the denial of TSGLI program benefits because the required benefit of the doubt alters the standard of proof that the claimant must meet, necessarily reducing it from the “preponderance of the evidence” to a lesser “substantial evidence” standard. g. As with the applicant’s case, similar issues of focusing on selective evidence, disregarding statements, and not focusing on the totality of evidence can be found in numerous court decisions, provided for review. Counsel asks a. that these decisions be reviewed and the guidance from the court be applied, since like those plaintiffs, the applicant’s medical records cannot cover every type of ADL limitation as provided in the TSGLI Guidelines for every day in question. h. In light of the evidence, the applicant is entitled to an additional recovery of $25,000.00 under the TSGLI coverage for 15-30 days of required ADL assistance due to a TBI. 22. After multiple denials of his claim, the HRC Special Compensations Branch TSGLI Program Office approved the applicant's appeal for TSGLI payment of $25,000.00 for his 15-day milestone loss of the ADL as a result of his TBI that occurred on 30 November 2007. His appeal was partially approved because based on his medical records it was reasonable to assume he required assistance with bathing, dressing, transferring, and toileting per program guidelines for the first 15 days following the traumatic event based upon the nature and severity of his TBI. 23. However, his medical record and he nature of his injury do not indicate or suggest that this injury rendered him incapable of utilizing adaptive behavior or accommodating equipment to perform ADLs at least a modified independent manner prior to the 30 day milestone. The applicant’s personal statement and those of his father and grandmother were reviewed and considered in this adjudication. 24. Counsel asserts the Board should apply the “benefit of the doubt” rule to the applicant’s case, where the medical documentation and personal statements might be incongruent with each other. The Board is not persuaded that the “benefit of the doubt” rule applies to TSGLI benefit cases. The applicable standard of proof for this case and all cases before the ABCMR is specifically defined in Army Regulation 15-185, which provides that an applicant has the burden of proving an error or injustice by a preponderance of the evidence. 25. With regard to whether the applicant was unable to independently perform at least two ADLs for 30 (or more) consecutive days, the Board has considered the evidence of record in assessing whether the applicant experienced the claimed ADL impairments. Of particular note is the comprehensive medical review and analysis conducted by the ARBA medical advisor, which provides persuasive and convincing rationale as to why a preponderance of the evidence does not support a finding that the applicant experienced an inability to independently perform at least two ADLs through the 30-day milestone. The ARBA medical advisor noted the medical documentation reflected no ADL impairment on 7 December 2007, 22. 8 days post the motor vehicle accident and opined the applicant was not unable to independently perform two or more ADLs for 30 or more days. 26. The ARBA medical advisor’s opinion is congruent with the medical evidence. The medical records do not convey the impression the applicant was so debilitated that he was unable to independently perform two or more ADLs continuously through the 30-day milestone. Although the applicant undoubtedly incurred constraints on mobility following the initial traumatic event, reflected in the approval of the claim at the 15 day milestone, the medical records do not convey the impression that he was so debilitated he was unable to independently perform at least two ADL for 30 consecutive days. The TSGLI benefit scheme contemplates injuries and debilitations that are so severe that the individual requires ADL assistance not merely for several days in a row. Instead, TSGLI requires an applicant to demonstrate disabilities and impairments so significant that performing two ADL for 30 consecutive days or more is not possible or safe without the help of another. 27. The applicant has failed to prove by a preponderance of evidence that he experienced a continuous inability to independently perform two or more ADLs through the 30-day milestone. //NOTHING FOLLOWS// ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 15 March 2019 DOCKET NUMBER: AR20160011742 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. Enclosure 1