ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 3 May 2019 DOCKET NUMBER: AR20160017927 COUNSEL REQUESTS: correction of the applicant’s records to show he is entitled to supplemental payments totaling $100,000.00 for a denied Traumatic Service members' Group Life Insurance (TSGLI) claim for a loss of activities of daily living (ADLs) at the 120 day milestone. COUNCEL'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: • DD Form 149 (Application for Correction of Military Record) • Power of Attorney • 4-page Attorney Brief • TSGLI Denial Letter • Medical Records • Dr. Certification • Dr. Statement • Letter of Support FACTS: 1. Counsel states: a. The applicant was denied TSGLI benefits. The most recent denial letter stated the applicant’s medical records did not indicate, nor suggest, his injury rendered him incapable of utilizing adaptive behavior or accommodating equipment to perform ADLs at least in a modified independent manner; however, Counsel disagrees for several reasons. Evidence will show that this loss, and the injury that caused his loss, is supported by sufficient medical information to grant the applicant a $100,000 award for loss ADLs from 27 September 2010 through February 2011. b. This claim arises out of a traumatic Injury that happened on 27 September 2010, near Elk Lake, Michigan. The applicant was injured when a tree limb fell and speared him in the neck above his clavicle. He was unsure how long he was on the ground before help arrived. A Flight crew was requested to intercept with local ambulance at the scene. He was resuscitated by the trauma team and brought to the operating room for emergency surgery. He almost died as the accident threatened his life with significant blood loss and impaled his body in close proximity to vital organs. The recovery was long and painful. Miraculously, he survived and several doctors noted he was lucky to be alive after the traumatic event. c. He was prematurely discharged from the hospital after two weeks with a figure 8 brace. The applicant needed assistance with bathing, dressing, eating and toileting for at least 120 days. His wife assisted him with both physical and stand-by help. She also expressed the applicant slept on the couch in the living room for months due to being too weak and unable to go up and down stairs alone. In November 2010, he could not perform therapy and he was ordered to take it very easy after the accident. His cervical rotation was restricted and he required help with any turning or bending. On 10 November 2010, at least 30 days after the accident, it is noted the applicant goals would be to reduce pain and restore full range of motion for daily activities. He experienced uncontrollable pain and continued to experience pain for several months. d. The applicant’s treating and observing physician, Dr. D.L., certified his TSGLI claim for loss of ADLs to include bathing, dressing, eating and toileting from 27 September 2010 to 27 November 2010. An independent doctor, Dr. D.H., reviewed the records and determined the applicant was not able to independently perform ADLS for a period of 120 days. Even into late December, Dr. M ordered the applicant to stop physical training because it was causing more pain. Likewise, Dr. M was trying to get the applicant more functional with daily activities into January 2011. e. The decision to deny the applicant's claim for TSGLI benefits is unsupported by substantial evidence. The denial is contrary to the law and the preponderance of evidence in this case, and should be reversed. The applicant’s treating doctor and an independent doctor were both consistent in certifying that the applicant required assistance with ADLs to qualify him for this claim. The standard of evidence in TSGLI cases is generally a "preponderance of the evidence" standard, meaning that if the evidence proves the Servicemember's claim is more likely than not, they are entitled to benefits. The applicant's claim is clearly meritorious based on the preponderance of the evidence. Even if the agency views this as a "close call", such claims should be decided in favor of the injured Servicemember. Pursuant to 38 USC § 5107(b) veterans are given "the benefit of the doubt" when there is an approximate balance of positive and negative evidence on a material issue. When the positive and negative evidence relating to a veteran's claim for benefits are in "approximate balance," thereby creating a "reasonable doubt" as to the merits of his or her claim, the veteran must prevail. 2. Counsel provides a letter from Dr. D.H., Medical Consultant, which states: a. He reviewed the applicant’s medical records and the letter of denial to overturn the previous adjudication concerning ADL losses of the applicant. Review of the records confirm that the applicant was involved in a near death accident which required him being hospitalized, placed on a respirator and in intensive care. He suffered left neck and thorax trauma, clavicle fracture, pneumothorax, rib fracture, and subclavian vein and brachial injuries. He was actively resuscitated by a surgical trauma team with blood transfusions. He was hospitalized for fourteen days and then discharged (prematurely) and was cared for by his wife. His wife stated that the applicant experienced uncontrollable pain, and she was very concerned about him being released without better control of pain. The applicant continued to experience pain upon discharge. b. The applicant’s injuries sustained on 27 September 2010 would cause him to need physical or stand-by assistance to bathe and dry his right upper body and to dress his right upper body from 27 September 2010 through 17 August 2011. This would qualify him for TSGLl benefits for loss of two of six ADLs for over 60 days due to his traumatic injuries. He started rehab physical therapy on 10 November 2010, but this caused increased pain to the point orthopedic physician discontinued this treatment regimen. Great Lakes Orthopedics ordered occupational therapy on 17 August 2011, to increase left arm/hand strength and range of motion, indicating he continued to have dysfunction in his ability to use his left shoulder, especially in cross-body and internal rotation movements. c. The applicant’s medical records fail to indicate his weakened state and loss of 60 pounds following his traumatic Injury. This would add to the requirement of stand-by assistance. Dr. D.H. requests that the TSGLI branch of service reevaluate all of the evidence to support the applicant’s claim for ADL losses which entitle him to an award of $100,000 for 120 days under the TSGLI schedule of losses for suffering a traumatic injury resulting in his inability to perform at least two ADLs. The applicant qualifies for more than the 60 days TSGLI claim asked for previously. 3. Counsel also provides a letter from the applicant’s wife which states: a. After the accident the applicant was in the hospital for a total of 14 days. He was in intensive care for seven days, five of which were on a ventilator. The other seven days he was on a medical/surgical floor. While they were on that floor, the applicant was begging the entire time to go home. The physicians told him once he could walk up and down the stairs he could go home. The first couple of days he could barely make it down the hall, but he pushed himself so that he could go home. His pain was never under control. b. The pharmacists came to the applicant’s room to discuss pain management with him. On day 14, the applicant was discharged, much to her dismay, considering his pain was not fully under control and he could barely walk up and down the stairs. Once they got home he made it to the couch and that is where he stayed. She helped him with all of his daily activities until around January of 2011. He had a hard time functioning due to his level of pain at all times. They had stairs in their home that went up to the bedroom, but she made a bed on the couch for him and that is where he slept. Prior to the accident he weighed in at 200 pounds; however, when he got hurt he got down to 140 pounds before he started to make a comeback. She had to make sure he was eating, otherwise he would not eat. Someone had to be with him at all times because he was just too weak. It was hard for him to do anything. She had to help him bathe himself, prepare his meals, stand-by his side when he walked, and help him get dressed. Due to the weakness he could not stand for long periods of time. Any task was pretty difficult for him to handle. c. The applicant relied on her 100 percent of the time to do the simplest of tasks.Being his primary caregiver and wife, it was hard to see him go through the pain. It was not just a back injury he had, the accident/injury almost took his life. He went into surgery and the doctors told her he might not make it. When he made it through that, they told her that the next 24-48 hours were very critical, and that he might not make it through it. Much to the amazement of every physician, the applicant made it through those critical points. The applicant’s injury was very severe and most men die in logging accidents. The applicant survived but he will be in pain the rest of his life. d. She hopes her letter provides a different perspective on the case. The applicant could have milked the system, causing a larger medical bill and more stress on her as she tried to juggle a newborn while he was in the hospital. No one wants to stay in the hospital longer than needed. 4. On 21 November 2013, the applicant completed an Application for TSGLI Benefits. The application states: a. The applicant was injured on 27 September 2010. He was working near Elk Lake, Michigan, for a tree service upon his return from his second deployment to Iraq. He was working in the afternoon when he was struck by a tree limb. The tree limb struck him on his upper left chest at the base of his neck. The injuries he sustained were severe and life threatening. He had ruptured veins, puncture and collapsed lung, multiple chest fractures, and severe blood loss. a. On 27 September 2010, he was transported and admitted to Munson Medical Center, Traverse City, Michigan. b. The reason he was unable to independently perform ADLs was due to the traumatic injury he sustained. c. He had an inability to independently perform the following ADLs from27 September 2010 through 27 November 2010 and required physical assistance (hands-on) with the following ADLs: • bathing • dressing • eating • toileting d. The specific required physical assistance (hands-on) is not documented on the form. e. The document was signed by a medical professional, Dr. D.L., on 19 November2013, attesting that he had observed the patient’s loss. He noted that he saw the applicant on two occasions, 17 August 2011 and 12 October 2011. He commented that the applicant was severely limited in ADLs for first 45-60 days after injury/surgery. 5. On 2 May 2014, his TSGLI claim was disapproved because his claim forhospitalization loss did not meet TSGLI standards. a. 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 in the Hospital Accreditation Program of the Joint Commission on Accreditation of Healthcare organizations. This includes Combat Support Hospitals, Air Force Theater Hospitals and Navy Ships. b. 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. Evidence indicates his hospitalization was not 15 days in length, his branch of service could not prove his claim. c. His claim for the inability to perform ADLs due to traumatic injury (other than TBI) was not approved because his loss did not meet the standards for TSGLI. To qualify, a claimant must have been unable to independently perform at least two ADLs for at least 30 consecutive days. The claimant is considered unable to perform an activity independently only if he or she requires at least one of the following, without which they would be incapable of performing the task: • physical assistance (hands-on) • stand-by assistance (within arm’s reach) • verbal assistance (must be instructed) d. Inability to perform two or more ADLs for at least 30 days must also be certified by a medical professional. His claim for the inability to perform ADLs due to other traumatic injury was not approved by his branch of service because medical documentation did not support his inability to perform ADLs for 30 days. e. He was advised of his right to appeal the decision within 1 year of the date of hisdenial letter. 6. The applicant retained counsel and signed a document authorizing counsel to represent the applicant in his TSGLI claim on 17 June 2014. 7. On 28 July 2014, a second TSGLI application was signed by counsel, on behalf of the applicant, which contained the same information listed on the original application submitted by the applicant. 8. On 26 January 2015, HRC TSGLI office denied the applicant’s claim afterreconsidering counsel’s request. The denial letter stated: a. The applicant’s request was denied because the medical documentation provided for the event, which took place in Michigan on 27 September 2010, did not indicate that he met the TSGLI standards for hospitalization or ADLs. The documents provided indicate that he was not hospitalized inpatient for 15 consecutive days or greater. While there is mention in the record of "15 days hospitalization," his date of injury was 27 September 2010 and the documents indicate that he was discharged on 10 October 2010. This is only 14 days, including the date of injury and the date of discharge. b. Additionally, the medical documentation submitted did not indicate that his injury rendered him incapable of performing the ADLs of bathing, eating, toileting, or dressing that are covered by TSGLI standards for 30 consecutive days or greater. If the Soldier is able to perform the activity by the use of accommodating equipment/adaptive measures (such as a cane, crutches, wheelchair, etc.), then the Soldier is considered able to independently perform the activity. Medical documents state that at the time of injury his wound was debrided and he did not require any type of sling or cervical immobilization. 9. On 8 April 2016, by letter, HRC, notified the applicant that after reviewing his claimand supporting documentation, they were unable to overturn the previous adjudication concerning losses associated with ADLs from the traumatic injury that occurred on 27 September 2010, near Elk Lake, Michigan. It further states: a. According to program guidelines, a member is considered to have a loss of ADLs if the member requires assistance to perform at least two of the six ADLs. The applicant's medical record does not indicate, nor suggest, his injury rendered him incapable of utilizing adaptive behavior or accommodating equipment to perform activities of daily living in at least a modified independent manner prior to the 30 day milestone. His medical record indicates his injury was to his left chest/neck/shoulder region and did not affect his right arm or either leg. b. The 13 October 2010, a Family Care note, which is 17 days after the traumatic event, states he had decent pain control. The 21 October 2010, orthopedic note indicates he had no significant nerve or vascular damage to his left arm and was able to move his left arm, albeit with decreased range of motion. The orthopedic note dated ABCMR Record of Proceedings (cont) 1 November 2010, showed he had left shoulder ranges of motion of approximately 140 degrees of active forward flexion and approximately 120 degrees of active abduction, which means he could actively raise his arm above his shoulder at that time. c. Furthermore, his wife's letter indicates he could walk up and down stairs independently prior to his hospital discharge, 14 days after the traumatic event. A person should be able to perform basic ADLs per program guidelines, who has an injury that primarily affects his non-dominant upper extremity and has decent pain control with functional ranges of motion. Therefore, this claim does not qualify for payment of benefits for the 30 day milestone or beyond. d. The applicant has the right to apply to the Army Review Boards Agency if he disagrees with this decision. In addition to using the administrative appeals process, he has the right to appeal this decision in federal district court. 10. On 22 January 2019, the Army Review Boards Agency (ARBA) senior medical advisor provided an advisory opinion which recommend no award of any TSGLI benefits (i.e. Inpatient Hospitalization, and/or ADLs at 30, 60, 90, and/or 120 days) as the clinical history and medical evidence clearly does not support the request A copy of the complete medical advisory was provided to the Board for their review and consideration. 11. On 4 February 2019, counsel provided a copy of the medical advisory for comment or rebuttal. He did not respond. 12. Public Law 109-13 (The Emergency Supplemental Appropriations Act, for Defense, the Global War on Terror, and Tsunami Relief, 2005), signed by the President on 11 May 2005, established the TSGLI program. BOARD DISCUSSION: 1. After reviewing the application and all evidence, the Board determined partial relief is warranted. 2. The applicant's contentions, medical concerns, letter of support, and the available medical opinions were carefully considered. The applicant requests $100,000 in TSGLI benefits claiming that after he suffered a traumatic upper-body injury, he was incapable of performing at least two of the six activities of daily living (ADLs) for a period of 120 consecutive days without the assistance of his spouse. Specifically, the applicant contends that it was necessary for his spouse to provide both physical assistance and stand-by assistance in order for him to be able to bathe, dress, eat, and toilet, during this consecutive 120-day period of time. Pursuant to 38 C.F.R. §9.20(f)(20), a TSGLI benefit of $25,000 is paid where a qualifying service member is unable to perform at least two ADLs, without assistance, for a loss period of 30 consecutive days. Thereafter, each additional 30-consecutive-day loss period warrants an incremental TSGLI benefit payment of $25,000, with the total potential payout capped at $100,000 for 120 consecutive days of the qualifying service member’s inability to carry out at least two ADLs. 3. The applicant suffered severe injuries to his upper body and was hospitalized. His supporting documents show that he was discharged after a 14-day inpatient hospitalization. There is no record of information from attending physicians (rehabilitation, occupational therapist, physical therapist etc.) treating him during the period in which he claims he could not perform at least two ADLs (120 consecutive days). The applicant’s previous TSGLI claim was denied due to a lack of evidence; however, his TSGLI claim is supported by the statement of his spouse addressing the ADL assistance she provided to the applicant, as well as the statements of two medical professionals (an MD/MPH and a DO), who both reviewed the applicant’s medical records before opining that he suffered the loss of at least two ADLs. 4. The ARBA medical advisory official recommended disapproval of the applicant’s TSGLI benefits request in its entirety, stating that the applicant’s clinical history and the available medical evidence clearly do not support the request. 5. Notwithstanding the ARBA medical advisory, and based upon the preponderance of the available evidence, the Board unanimously agreed that it was more likely than not that the applicant could not perform the ADLs of dressing, eating, and toileting, without the assistance of his spouse, for 30 consecutive days as a result of his traumatic upper body injury. The Board unanimously determined that the preponderance of the evidence did not support any additional award of TSGLI benefits due to ADL loss occurring after the 30 consecutive day milestone. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing he was approved for a 30-day TSGLI payment for the inability to perform at least two ADLs during the period 27 September 2010 – 26 October 2010, and providing him with the insurance payment authorized for that time period. 2. The Board further determined the evidence presented is insufficient to warrant aportion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to approving additional TSGLI payments for reaching 60, 90, 120 or more days. CHAIRPERSON Signed by: 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. ADMINISTRATIVE NOTE(S): Not Applicable 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. U.S. Army Combat-Related Special Compensation (CRSC) 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 and $100,000 to severely injured Soldiers who meet the requisite qualifications set forth by the Department of Defense. As of 1 December 2005, TSGLI is included as part of a Soldier's SGLI coverage. Any Soldier who elected SGLI coverage automatically receives TSGLI coverage with an additional $1 taken out each month to cover the cost of the TSGLI policy. Soldiers paying for SGLI coverage cannot decline TSGLI--it is a package. In addition, there is a retroactive program, in which Soldiers who incurred a qualifying traumatic injury from 7 October 2001 through 30 November 2005, while supporting OIF and OEF or under orders in a Combat Zone Tax Exclusion (CZTE) area are covered regardless of whether they elected SGLI coverage or not. Soldiers who elect SGLI coverage and incur a qualifying traumatic injury after 1 December 2005 (with the exception of some specific circumstances under which a traumatic injury will not be covered), regardless of their component (Active, Reserve, or National Guard) or the location in which they incurred the injury will be covered by TSGLI. 2. There are some specific circumstances under which a traumatic injury will not becovered by TSGLI. A qualifying traumatic injury is an injury or loss caused by application of external force or violence (a traumatic event) or a condition whose cause can be directly linked to a traumatic event. Traumatic injuries covered may include, but are not limited to the following types of losses: a. total and permanent loss of sight in one or both eyes; b. loss of hand or foot by severance at or above the wrist or ankle; c. total and permanent loss of hearing in one or both ears; d. loss of speech; e. loss of thumb and index finger of the same hand by severance at or above the metacarpophalandeal joints; f. quadriplegia, paraplegia or hemiplegic; g. 3rd degree or worse burns covering 30 percent of body or 30 percent of the face; h. 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). ADL loss must be certified by a healthcare provider in Part B of the claim form, and ADL loss must be substantiated by appropriate documentation such as Occupational/Physical Therapy Reports, Patient Discharge Summaries, or other pertinent documents demonstrating the injury type and duration of ADL loss. While TSGLI claims won't be approved without a certification from a healthcare provider, additional documentation must be provided to substantiate the certification. 3. Payments for loss of 2 of the 6 ADLs due to traumatic injury (other than traumaticbrain injury) will be made as follows: ? $25,000 at the 30th consecutive day ABCMR Record of Proceedings (cont) ? an additional $25,000 at the 60th consecutive day ? an additional $25,000 at the 90th consecutive day ? an additional $25,000 at the 120th consecutive day 4. 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. This regulation provides that the ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. ABCMR Record of Proceedings (cont) AR20160017927 ABCMR Record of Proceedings (cont) AR20160017927 6 7 1 ABCMR Record of Proceedings (cont) AR20160017927 AR20160017927 10 11 AR20160017927 1