ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 12 December 2019 DOCKET NUMBER: AR20160015518 APPLICANT REQUESTS: through counsel, reversal of the decision by the Office of the Traumatic Service member's Group Life Insurance (TSGLI) to deny her payment of TSGLI benefits for her 25 February 2012 injury. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Notice of disagreement and argument * TSGLI Procedural History * TSGLI Application and medical records * 3 denials by Prudential and the Office of TSGLI, U.S. army Human Resources Command (HRC) * Statement * Power of Attorney FACTS: 1. Counsel states that the applicant required physical and standby assistance with several Activities of Daily Living (ADLs): to bathe, dress, maintain continence, toilet and transfer. Counsel argues that the 28 July 2016 decision of the Army TSGLI Office to deny the applicant's states the denial decision should be reversed and her claim be reinstated for well over 120 days' loss of ability to independently perform two or more ADLs and an award of $100,000 award, or the maximum award the Board believes is justified by the evidence available, and any further relief that this Board deems appropriate. This is a claim that should be awarded. He wishes to avoid litigation in Federal District Court of this matter if the denial is upheld, which will only add delay and 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, counsel will seek attorney fees, costs, interest and any other remedies the Federal Court deems appropriate. He argues that: * the medical records address the specific cause of the applicant's right arm injury which qualifies as a traumatic event and injury according to the TSGLI law * the medical records contain notations from Licensed Medical Providers illustrating ADL loss and a timeline of treatment * the applicant suffered well over 120 days' loss of inability to independently perform AADLs, qualifying her for $100,000 2. The applicant provides her TSGLI Procedural History, TSGLI Application and medical records, denials by Prudential and the Office of TSGLI at HRC, and a statement from her former roommate who states she and the applicant were roommates and good friends at the time of the accident on 25 February 2012. She was brought by ambulance to the hospital and had extensive tests followed by surgery the same night. She broke her arm and had plates placed in her wrist. She also had a large gash across her head that received staples. Her right leg had a massive (about a softball size) lump and gash. She could not bear much weight on the leg. Though she was explained, they could not do anything. On 1 March 2012, she came home from the hospital. She (the author) was able to stay with her for 2 weeks to aid her with also the help of her sister X__ X__. They helped her with daily tasks such as showering, cooking, getting dressed, toileting were not possible without assistance. a. Assistance dressing: she assisted with getting bra on. She then placed shirt overhead and pulled down. She helped pull up pants over hips. She wore on a daily basis loose pants or yoga pants. T-shirts were the only thing they could get on her due to the cast and the large gash above her elbow. She could not put shoes on alone or tie her shoe. b. Assistance showering: she turned on the shower on to reach desired temperature. She would place bags over her cast. She assisted her to step into the bathtub/showering unit. She would help her with washing her hair (not near wound) as she washed her bod. She would hold her up if she got suds in her eyes because she would lose her balance very quickly. When finished, she would dry her legs, feet, and part of hair. She would help put her hair up or out of her face. c. Meals: She prepared and served all meals to her. She could not open, pour, or carry anything. d. Assistance toileting: She assisted her into the bathroom and safely onto commode. She would call when she was finished and she (the author) would assist her getting up and pulling cloths up. She was not able to flex into a squat position. 3. Review of the applicant's service records shows: a. She enlisted in the Regular Army on 11 August 2009. b. She was injured on 25 February 2012. She sustained a right radial shaft fracture with intra-articular extension while rock climbing. She was hit by a boulder while rock climbing and suffered an open fracture of her right forearm at Fort Bliss, TX. c. She was admitted on that same day and her treatment included open reduction internal fixation (ORIF) (surgery to fix severely broken bones) with carpal tunnel release. Complications were minor but included drainage of the wound site treated as an incisional infection. There was also a residual median nerve dysfunction. By 6 weeks post-op, she remained unable to perform Soldier tasks and had less than full use of her right hand. d. She retired on 23 October 2013 due to disability and she was placed on the retired list in her retired grade of E-4 on 24 October 2013. He DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 years, 2 months, and 13 days of active service. e. She applied for TSGLI on 2 August 2013 based on her 25 February 2012 injury, but her application was incomplete. She submitted her application on or about 11 September 2013 but her application was denied on 19 November 2013. She submitted a reconsideration request on 12 January 2015 but this was also denied on 8 Jul 2015. She appealed on 3 August 2015 but her appeal was also denied on 3 August 2016. The Office of TSGLI indicated that: (1) According to TSGLI guidelines, a member is considered to have a loss of activities of daily living if the member requires assistance to perform at least two of the six ADLs. If the patient is able to perform the activity by using accommodating equipment (such as a cane, walker, commode, etc.) or adaptive behavior, the patient is considered able to independently perform the activity. A person with a single limb injury, particularly involving only one wrist and hand, would often be able to perform all basic ADLs in a modified independent manner with adaptive behavior and/or accommodating equipment prior to the 30-day milestone. (2) The medical record showed that her injury primarily affected the function of her right wrist and her right thumb, index, and middle fingers. This would indicate that she had a fully functional right elbow and shoulder and entire left upper extremity. The notes from 14 March 2012 (Day 19 after TE (traumatic injury)) and 20 March 2012 (Day 25 after TE) showed she was able to actively flex her right index, middle, ring, and small fingers. A person able to flex these fingers with a fully functioning right elbow and shoulder should be able to hold a sponge or washcloth to bathe the left upper body and arm, while her fully functioning left upper extremity should be able to wash the rest of her body. Furthermore, use of a long-handled sponge would allow her to wash her left upper body and arm without use of the right arm entirely. In addition, the standard for dressing is a person can wear season appropriate clothes, which would include t-shirts, sweatshirts, sweatpants, dresses, and slip-on shoes. A person with a fully functional left upper extremity and right shoulder and elbow should be able to don these clothes without assistance, thus not requiring manipulation of buttons, zippers, or shoelaces to meet the standard. Moreover, the letters from her roommate and her sister state that they were only able to stay with her for 2 weeks to aid her. Therefore, this claim does not qualify for payment for the 30 day milestone or beyond of OTl-related AOL loss. (3) Statements by the Soldier’s friend that she provided ADL assistance to the Soldier for a few weeks is accepted without question. However, there is no statement or objective evidence of ADL support beyond the 30-day milestone. Even if a statement of support were supplied, the fact that someone did provide ADL assistance is not the standard for TSGLI payment. The standard is that the ADL assistance must have been rendered because without such assistance the Soldier could not have performed ADLs in even a modified independent manner. Partial loss of function with evidence of progressive healing in a single upper extremity is simply not consistent with that level of impairment. (4) The injury pattern - an isolated, moderately complicated single limb injury in an otherwise uninjured Soldier – would possibly cause a significant, sustained impairment of ADLs that could not be overcome by adopting adaptive behaviors to accomplish all activities of daily living in a modified independent manner within 30 days. There is data prior to the 60-day milestone that the Soldier’s residual function was more than adequate for modified independence in ADLs. 4. The Army Review Boards Agency medical advisor reviewed her packet, the original submission, the multiple denials, and the medical records she provided. The medical advisor rendered an advisory opinion on 10 November 2019 and recommended denial. the medical advisor stated that based on the information available for review at the time, the traumatic event did not meet the standard to claim a loss for inability to perform at least two ADLs for 30, 60, 90 or 120 consecutive days. 5. The applicant and/or her counsel were provided with a copy of this advisory opinion to give them an opportunity to submit a rebuttal. No response was received. 6. By law (Public Law 109-13), 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, or survived for a period of not less than 7 full days from the date of the traumatic injury (in a death-related case). 7. 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. a. 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. b. 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. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found relief was not warranted. Based upon the medical advisory’s findings and a lack of any rebuttal submitted by the applicant of those findings, the Board concluded there was insufficient evidence of an error or injustice which would warrant a change to the record. 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, and/or 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. a. Total and permanent loss of sight in one or both eyes; loss of hand or foot by severance at or above the wrist or ankle; total and permanent loss of hearing in one or both ears; loss of speech; loss of thumb and index finger of the same hand by severance at or above the metacarpophalangeal joints; quadriplegia, paraplegia or hemiplegia; 3rd degree or worse burns covering 30 percent of body or 30 percent of the face; coma or traumatic brain injury; or i. Other traumatic injuries resulting in the inability to carry out two of the six ADLs, which are dressing, bathing, toileting, eating, continence, and transferring. TSGLI claims may be filed for loss of ADLs if the claimant is completely dependent on someone else to perform 2 of the 6 ADLs for 30 days or more (15 days or more in the case of traumatic brain injuries). A healthcare provider must certify ADL loss 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 medical documents demonstrating the injury type and duration of ADL loss. While TSGLI claims will not be approved without a certification from a healthcare provider, additional documentation must be provided to substantiate the certification. NOTHING FOLLOWS ABCMR Record of Proceedings (cont) AR20160015518 6 1