ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 6 May 2019 DOCKET NUMBER: AR20170001979 APPLICANT REQUESTS: through Counsel, correction of his military records to show his entitlement to supplemental payments totaling an additional $50,000.00 for a partially denied Traumatic Servicemembers' Group Life Insurance (TSGLI) claim for limb salvage of the right leg and personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record),dated 9 December 2016 * DD Form 149, dated 17 May 2017 * Counsel’s letter, dated 17 May 2017 * Power of Attorney * Chronological Record of Medical Care * Patient Movement Request * Patient Movement Record * Brooke Army Medical Center (BAMC) Burn Unit Discharge Summary * SGLV Form 8600 (Application for TSGLI Benefits), dated 13 May 2010 * SGLV Form 8600, dated 31 January 2012 * Prudential, Office of SGLI letter, dated 7 September 2012 * A Company, Warrior Transition Battalion memorandum, dated 2 October 2012 * Department of Veterans Affairs (VA), Tennessee Valley Healthcare System letter, dated 31 July 2013 * SGLV Form 8600, dated 1 August 2013 * TSGLI Intake Form, dated 15 August 2013 * U.S. Army Human Resources Command (HRC) letter, dated 30 December 2013 * HRC letter, dated 19 February 2014 * HRC letter, dated 5 May 2017 * medical journal article, “Acute Limb Compartment Syndromes” * National Institutes of Health Public Access, Author Manuscript, “Early Fasciotomy in Patients with Extremity Vascular Injury is Associated with Decreased Risk of Adverse Limb Outcomes: A Review of the National Trauma Data Bank * University of Tennessee, College of Medicine, article, “Limb Salvage Versus Traumatic Amputation” * The Journal of TRAUMA Injury, Infection, and Critical Care article, “Complications after Fasciotomy Revision and Delayed Compartment Release in Combat Patients” * Code of Federal Regulations (CFR), Title 38 * U.S. District Court, WMemorandum Opinion and Order * U.S. District Court, Western District of Kentucky, Louisville Division, Chad Carver v. USA Memorandum Opinion and Order * U.S. District Court for the District Opinion and Order Affirming, in Part, and Vacating, in Part, Agency Action * U.S. District Court, Western District of Memorandum Opinion * TSGLI Procedural Guide FACTS: 1. Counsel states: a. The TSGLI office has denied the claim and subsequent appeals for limb salvage surgeries of the right leg. The TSGLI office failed to properly consider the evidence enclosed and failed to make a decision pursuant to it. Also, new, material evidence is enclosed. If the prior evidence had been fully and properly considered, a decision to grant the benefits would have been rendered. It was an error and injustice to not provide the benefits requested. The new evidence further strengthens the requested relief. b. The denial is in error and unjust since no legal standard is applied. Secondly, evidence in the record allows for approval. The weight of the evidence demonstrates that the right leg surgeries were limb salvage surgeries and outweigh the reasoning and records referenced in the decision. As such, the evidence has been ignored, unfairly referenced, and unjustifiably discounted. c. Counsel has been retained by the applicant to represent him in this matter and he requests the TSGLI office evaluate all evidence submitted to support his TSGLI claim for limb salvage of the right leg benefits, Service members pay into the SGLI program each month with the expectation that if they are severely injured, there will be financial assistance to help them and their families. d. Unfortunately, the Government is the insurance policy holder of the SGLI, which limits any lawsuit for bad faith and only allows for Federal Court review under the “arbitrary and capricious standard.” The absence of potential bad faith insurance actions, which is a check and balance system on wrongful denials, creates a greater responsibility for the TSGLI office to be self-policing, and a greater responsibility for the Army Board for Correction of Military Records (ABCMR) to avoid and correct wrongful denials with consideration of the totality of all evidence provided. e. The TSGLI office must work within the guidelines of CFR, Title 38. As such, 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.” (U.S. Code, Title 38). See also Koffarnus v. United States, which requires the TSGLI office to review and decide claims without the external and restrictive interpretations of CFR 38. Yearwood v. Unites States also mandated benefit of the doubt “is of particular importance” in reviewing the denial of TSGLI program benefits as the required benefit of the doubt alters the standard of proof that the claimant must meet, necessarily reducing it from “preponderance of the evidence” to a lesser “substantial evidence” standard. The practical consequence is a shift in the burden from the applicant to the TSGLI office. f. In this case, on 11 April 2010, in Afghanistan, the applicant stood over an improvised explosive device (IED) that exploded. The resulting multiple life-threatening injuries included numerous shrapnel wounds to the face and neck, left shoulder, both forearms, both hands, degloving injury (severe injury where top layers of skin and tissue are ripped from the underlying muscle, connective tissue, or bone) of the dorsum of the penis and scrotum, large degloving injury of the posterior right knee, full thickness lip lacerations, multiple fragment wounds to the left ground area and a traumatic brain injury (TBI). There was initially no mention of TBI in the medical records, however he did receive some TBI therapy for the late effects of his closed head injury, post- concussion. g. The early extensive treatment of the above injuries included initial surgeries for right calf, popliteal (artery) exploration with four compartment (anterior, lateral, superficial posterior, and deep posterior leg compartments) fasciotomies (surgical procedure where the fascia (tissue enclosing a muscle) is cut to relieve tension and to treat the resulting loss of circulation to an area of tissue or muscle), irrigation (washing of wound) and debridement (removal of damaged tissue or foreign objects from a wound) (I&D) of all soft tissue wounds, I&D of facial lacerations with repair of lip, face and right ear lacerations, temporary nail bed closure of left fourth digit, left orchiectomy (removal of left testis). There was an open fracture of the right third proximal interphalangeal joints (PIP) opened and irrigated; longitudinal split in extensor tendon; fourth PIP had a large open dorsal wound with extensor tendon damage that was sutured; right distal forearm ulnar wound was opened, washed and packed and dressed. His hand was splinted. The left upper extremity dorsal wound over the fifth MCP (metacarpophalangeal joint) was opened. There was damage to the EDM (extensor digitorum muscle), also known as the EDC (extensor digitorum communis) of the fifth digit. He also suffered a partial distal tip amputation and nail bed laceration to the left fourth finger. There was a large extensively contaminated degloving injury of the left posterior elbow down to the radius. His wounds were debrided and packed and the facial lacerations irrigated. He suffered several lip lacerations, some full thickness, debrided and sutured. There was a right ear fragment wound that was provided I&D and sutured. The left infraorbital fragment wound was quite deep and entered the orbital fat. It was irrigated and left open. Lastly, all extremities had soft tissue shrapnel wounds. h. Prior to his representation by current Counsel, his claim had exhausted all levels of appeal before the ABCMR. At earlier stages of the claim and the appeals, the applicant was awarded $25,000.00 for over 15 consecutive days of inpatient hospitalization as well as $25,000.00 for the loss of his left testicle and anatomical loss of the penis (reconstructive surgery). A total of $50,000.00 has been awarded. The $50,000.00 for permanent loss of use of penis, loss of left testicle, and inpatient hospitalization is not in dispute. Counsel and his client are in disagreement, however, over the decision to deny an additional $50,000.00 in benefits for limb salvage surgeries of the right leg. “Limb salvage” can be combined with the $50,000.00 in benefits already issued. i. In this case, the applicant required four compartment fasciotomies and a skin graft of his right leg due to compartment syndrome. There is no direct mention of the term “limb salvage” or clear discussion of the risk of amputation in the initial medical records related to the surgeries. This is not uncommon and not a requirement of the surgeon to label his surgeries as “limb salvage” surgeries. It cannot be expected for a surgeon to use the term “limb salvage” and tailor records for a claimant to be approved for TSGLI benefits for limb salvage surgeries. It should also not be required for a claimant to have such language in his records in order to qualify for TSGLI benefits. In cases where the preferred language for TSGLI benefits is not in the records, other evidence should be considered. j. In this case, the attending surgeon did not provide a clear use of the term “limb salvage” in the medical records, but Doctor (Dr.) J____ S___ whose specialization is in surgery and surgical critical care, provided in the TSGLI applicant: “skin graft, four point fasciotomy = first step in limb salvage.” Dr. P____ V____ also checked the box for limb salvage surgeries of the right leg on 31 January 2012, in a second application for benefits. Upon a request by the applicant for a clearer explanation, Dr. J____ D____, emergency room attending physician at the VA Hospital in Nashville, TN, wrote a letter stating: “…I have evaluated [the applicant] and noted that consistent with his history and physical examination, he has a traumatic leg injury. Limb saving surgery with a four point fasciotomy was done after a bomb explosion while on active duty.” Finally Major O____ B____, battalion surgeon, provided a memorandum dated 2 October 2012 wherein he states four compartment fasciotomies of the right lower extremity, to include cautery and suturing of venous bleeding of the knee joint constitutes a “limb salvage procedure.” k. The final decision letter from the TSGLI office, dated 19 February 2014, states: “The medical documents provided, which include a letter from your physician stating that you had limb saving procedures, but do not meet the TSGLI standard for limb salvage in place of amputation. The medical documents submitted did not indicate that a series of operations were performed that are designed to avoid amputation while simultaneously maximizing the limb’s functionality, per the TSGLI guidelines for your claim for limb salvage of the left [sic] leg.” l. This finding of the TSGLI office is contrary to four doctors that have found the surgeries at issue to be limb salvage surgeries. Second, the TSGLI office has denied that limb saving surgeries are the same as “limb salvage” surgeries. The two terms are interchangeable and this term was used by only one of the four doctors. Additionally, some fasciotomies may not be considered a “limb salvage” surgery, while other fasciotomies, especially a four point fasciotomy (where all four compartments were released) with a skin graft that includes cautery and suturing of venous bleeding of knee joint with multiple shrapnel wounds is a “limb salvage” surgery. This is supported by four doctors, who separately identify the surgeries as the “first step in limb salvage surgeries,” “limb saving,” and a “limb salvage procedure.” Relevant research articles that outline the complications of similar surgeries and support the classification of the applicant’s four compartment fasciotomy as being a “limb salvage” surgery have been enclosed. m. In light of the foregoing, the evidence in this case weighs in favor of the applicant’s right leg surgeries being classified as “limb salvage” surgeries. The TSGLI office overreliance on the terms “limb salvage” and “necessary to avoid amputation” as not being clearly labeled in early medical records is misguided. The TSGLI office cannot expect or require medical professionals to adapt their language to the TSGLI requirements and deny a claim if the exact language is not met. The strict interpretation and requirement of certain medical terms in this case has resulted in an error and injustice. n. The supporting evidence demonstrates the applicant is entitled to recovery of an additional $50,000.00 under the TSGLI insurance coverage for salvage of his leg in place of amputation of each leg. 2. The applicant enlisted in the Regular Army on 16 June 2006. 3. He deployed to Iraq from 23 September 2007 through 12 November 2008 and to Afghanistan from 18 January 2010 through 11 April 2010. 4. A Standard Form 600 (Chronological Record of Medical Care), dated 11 April 2010, shows: a. The applicant was injured in the U.S. Army Central Command theater on the date of the form by the terrorist explosion of an IED resulting in diffuse fragment wounds of the face, upper extremities, lower extremities, degloving injuries of the penis, scrotum, right medial and posterior knee and anemia secondary to hemorrhage. He underwent emergency operation for resuscitation, exploration of wounds, and control of hemorrhage. b. His postoperative diagnoses were: * extensively contaminated soft tissue wounds to all extremities without major vascular injury * traumatic right posterior knee arthrotomy (incision into a joint) with medial tibial plateau fracture * extensor tendon laceration of third and fourth digits of right hand with open fracture of third PIP (proximal interphalangeal joint) * partial extensor tendon laceration of the left fifth digit * penile degloving * left testis destruction with open scrotal lacerations * multiple facial lacerations, including full=thickness lip lacerations * left hyphema (visible blood in anterior chamber of the eye) with pupillary defect * nail-bed laceration of the left fourth digit c. The surgical procedures performed were: * right subclavian (jugular) central venous 8.5 Fr (fraction of an inch) introducer catheter * right calf and popliteal exploration with four-compartment fasciotomies angiogram (X-ray of blood or lymph vessels) of right lower extremity * I&D (incision and drainage) of all extremity soft tissue wounds * I&D of facial lacerations with repair of lip, face and right ear lacerations * left orchiectomy (surgical removal of one or both testicles) with I&D of scrotum and penis * Foley catheter insertion, atraumatic * temporary nail bed closure of left fourth digit 5. A Patient Movement Request shows he arrived at Landstuhl Regional Medical Center, Germany, on 13 April 2010 and was admitted to the intensive care unit. He was subsequently transferred to BAMC, Burn Center, at Fort Sam Houston, TX, on 14 April 2010 for specialty care, including reconstructive surgery and burn therapy. 6. A Burn Unit Discharge Summary shows he was admitted to the BAMC Burn Center on 14 April 2010 and discharged on 11 May 2010 in stable condition. 7. An SGLV 8600, dated 13 May 2010, shows: * the applicant stated he was injured by an IED blast while on dismounted patrol on 11 April 2010 in Afghanistan where he sustained injuries to his head, face, both arms, both legs, and groin * he was hospitalized at Staff Sergeant Heathe N. Craig Joint Theater Hospital, Bagram, Afghanistan, Landstuhl Regional Medical Center, Germany, and BAMC, Fort Sam Houston, TX, from 11 April 2010 through 11 May 2010 * the applicant did not request compensation for limb salvage in this application * the form at the time defined limb salvage as a series of operations designed to save an arm or leg rather than amputate and a surgeon MUST certify that the option of amputation of limb was offered to the patient as a medically justified alternative to limb salvage and the patient chose limb salvage 8. A copy of the Prudential TSGLI decisional letter was not provided for review. Records indicate he was awarded $25,000.00 for other traumatic injury, 30-day inpatient hospitalization subsequent to his 13 May 2010 TSGLI application. 9. An SGLV 8600, dated 31 January 2012, shows: * the applicant stated he was injured by an IED blast while on dismounted patrol on 11 April 2010 in Afghanistan and evacuated to the 452nd Theater Clinic for treatment * he suffered multiple soft tissue wounds to all extremities including the degloving of the genitalia and multiple facial lacerations * he was taken to the operating room where his penis and scrotum were irrigated and debrided of mud and dead tissue * all that remained of the left testis was a rim of capsule which required a left orchiectomy * he was intubated and taken to the intensive care unit in stable condition then was medically evacuated for further treatment * the medical professional’s statement shows claimed a qualifying loss for inpatient hospitalization that lasted from 11 April 2010 through 13 May 2010 * he claimed a qualifying loss for second degree or worse burns to the body including face and head that affected 2 percent of his body * he claimed a qualifying loss for limb salvage of the right leg on 11 April 2010; however, the surgeon certification field was unsigned and no additional comments were offered * the form at the time defined limb salvage as a series of operations designed to avoid amputation of an arm or a leg while at the same time maximizing the limb’s functionality; the surgeries typically involve bone and skin grafts, bone resection, reconstructive, and plastic surgeries and often occur over months or years * he claimed a qualifying loss for genitourinary systems (relating to the genital and urinary organs) losses, including the anatomical loss of his penis and one testicle on 11 April 2010 * the medical professional signed the form on 31 January 2012, but did not provide any comments regarding any of the claimed losses 10. A DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings, shows a PEB convened on 24 July 2012, and found he was unfit for post-traumatic stress disorder (PTSD), with a rating of 50 percent and for left (non-dominant shoulder labral tear, with a rating of 20 percent. The following Medical Evaluation Board diagnoses were deemed not unfitting: * bilateral knee pain * conductive hearing loss * bilateral tympanic membrane perforation * chronic serous otitis media * lumbago * erectile dysfunction * status post traumatic left orchiectomy and penile degloving injury * history of traumatic brain injury * hypogonadism * scars secondary to third degree burns involving less than 10 percent of his body surface * left retinal scar * right middle finger PIP joint ankyloses * right shoulder strain * bilateral ankle strain * status post right tibial plateau fracture * bilateral tinnitus * recurrent right lower extremity edema * gynecomastia bilateral, resolved 11. His recommended combined rating was 60 percent and his placement on the Temporary Disability Retired List (TDRL) was recommended because his disability was not sufficiently stable for final adjudication from a disability percentage perspective. The applicant concurred and waived a formal hearing of his case on 6 August 2012, and did not request reconsideration of his VA ratings. 12. A Prudential TSGLI letter, dated 7 September 2012, states: a. His branch of service completed evaluating his claim for TSGLI benefits and unfortunately, his claim for additional TSGLI benefits could not be approved. b. His claim for burns was not approved because his loss did not meet the TSGLI standard. Under TSGLI, burns are defined as second degree burns to at least 20 percent of the face or 20 percent of the body. Because evidence indicated he had burns to 2 percent of his body, his branch of service could not approve his claim. c. His claim for anatomical loss of the penis was not approved because his loss did not meet the TSGLI standard. Under TSGLI, anatomical loss of the penis is defined as amputation of the glans penis or any portion of the shaft of the penis above the glans penis (closer to the body) or damage to the glans penis or shaft of the penis that requires reconstructive surgery. Because evidence indicated his loss did not meet these requirements, his branch of service could not approve his claim. d. His claim for anatomical loss of one testicle, although approved by his branch of service, was not payable as that loss could not be combined with the previous claim paid for 15 days hospitalization due to traumatic injury. 13. Headquarters, 101st Airborne Division (Air Assault) and Fort Campbell Orders 262-0605, dated 18 September 2012, released him from assignment and duty because of physical disability incurred while entitled to basic pay and under conditions that permitted his placement on the TDRL. The effective date of his placement on the TDRL was 22 November 2012. 14. An A Company, Warrior Transition Battalion, U.S. Army Medical Department Activity memorandum, dated 2 October 2012, and signed by the Battalion Surgeon states this memorandum certifies that on 11 April 2010 the applicant was involved in the explosion of an IED while serving in support of Operation Enduring Freedom, resulting in the following injuries and corrective therapies: a. Penile degloving with soft tissue injury to distal anterior and right lateral penile shaft; the penis was irrigated and debrided of dead tissue and mud and packed with gauze. b. Left testis destruction with open scrotal lacerations; left orchiectomy with ligation of vas deferens and testicular artery c. Traumatic right posterior knee arthrotomy; four compartment fasciotomies of the right lower extremity to include cautery and suturing of venous bleeding of the knee joint; this constitutes limb salvage procedure. d. The traumatic limb injury resulted in the continued need for compression stocking due to persistent right lower extremity edema (swelling due to excess of watery fluid collecting in the cavities or tissues of the body). The penile degloving resulted in difficulty maintaining erection and achieving orgasm, requiring pharmaceutical intervention. The loss of testicle resulted in hypogogadism (reduction of hormone secretion of the gonads) requiring testosterone replacement therapy. 15. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was honorably retired on 21 November 2012, due to disability, temporary (enhanced), after 6 years, 5 months, and 6 days of net active duty this period. 16. A copy of the subsequent Prudential TSGLI decisional letter was not provided for review. Records indicate that upon reconsideration of his 31 January 2012 application, the applicant was awarded an additional $25,000.00 for loss of his left testicle on 29 November 2012. 17. A VA, Tennessee Valley Healthcare System letter, dated 31 July 2013 and signed by the emergency room attending physician, states: a. The applicant was seen in their emergency room on 31 July 2013. The attending physician evaluated the applicant as both an emergency room physician and internist and noted he had a traumatic leg injury, consistent with his history and physical examination. b. Limb saving surgery with a four point fasciotomy was done after a bomb explosion while on active duty. Please allow the applicant the needed services for treatment, rehabilitation, and further care of this injury. 18. An SGLV 8600, dated 1 August 2013, shows: * the applicant states he was blown up by an IED at extremely close proximity while on dismounted patrol in Khost Province, Sabari District on 11 April 2010 * this resulted in severe traumatic injury to his right lower extremity, requiring a limb saving operational procedure of a four point fasciotomy to be done * he claimed limb salvage as a qualifying loss, and although J____ S____ was entered in the “Name of Surgeon” field, the “Signature of Surgeon” field was left blank and a reference to “From Medical Records” was entered * in the “Additional Comments” box for “Limb Salvage” the words “Skin graphs [sic], four Point fasciotomy=first step in Limb Salvage” appear * the definition of limb salvage remains unchanged on this form from the definition on the January 2012 application * the “Medical Professional’s Signature” field is blank; however, the words “from Medical Records are written in that field 19. A TSGLI Intake Form for appeal of limb salvage of the leg lists the following claims: * initial application, received on 28 May 2010 resulted in a $25,000 award for other traumatic injury/hospitalization * second application, received on 18 June 2012, resulted in $0 award * second application reconsideration, received on 29 November 2012, resulted in a $25,000 award for genitourinary systems losses, including the anatomical loss of his penis and one testicle * third application, received on 15 August 2013 did not yet have a decision 20. An HRC Special Compensation Branch (TSGLI) letter, dated 30 December 2013, states: a. The Army TSGLI office received his request for reconsideration of his TSGLI claim for limb salvage. Additional information was required to process his claim. His TSGLI application and medical records were reviewed by their staff physician. b. Trauma surgeons and TSGLI guidelines define “limb salvage” differently, which often confuses claimants. In this case specifically, the term “limb saving” was being conflated with limb salvage. There is no evidence presented that the applicant’s limb was in jeopardy after initial limb saving intervention or that amputation was ever contemplated or offered in lieu of more conservative treatment. c. The documents show the limb saving procedures were performed, however the submitted documents do not support payment of the claim of Limb Salvage in place of amputation, per TSGLI guidelines. For this reason, additional documentation pertaining to his claim of limb salvage in place of amputation was requested. This documentation should include operative reports or medical documentation of any procedures he had on his right leg since the time of his initial injury. 21. An HRC Special Compensation Branch (TSGLI) letter, dated 19 February 2014, states: a. The Army TSGLI program office received his appeal request and after reviewing the claim and supporting documentation, they were unable to overturn the previous adjudication. b. The appicant was previously awarded $50,000 for other traumatic injury hospitalization, anatomical loss of the penis, and anatomical loss of one testicle for his event which took place on 11 April 2010, in Afghanistan. According to TSGLI guidelines, these losses cannot be combined for payment. c. The medical documents the applicant provided, which include a letter from his physician stating he had limb saving procedures, do not meet the TSGLI standards for limb salvage in place of amputation. The medical documents submitted did not indicate that a series of operations were performed that were designed to avoid amputation while simultaneously maximizing the limb’s functionality, per the TSGLI guidelines for his claim for limb salvage of the left leg. d. He was advised he had the right to apply to the Army Review Boards Agency (ARBA) if he disagreed with this decision. 22. An HRC Special Compensation Branch (TSGLI) letter, dated 5 May 2017, informed the applicant and Counsel that his appeal rights with their office were exhausted. His claim had previously been denied at the initial, reconsideration, and appeal levels and he was directed to submit any further appeals to ARBA. 23. On 5 February 2019, the ARBA senior medical advisor provided an advisory opinion, which states: a. The applicant underwent a limb saving procedure, which is not limb salvage. Limb salvage involves a limb which was previously “saved” that has continued dysfunction over time (weeks to months to years), requiring multiple surgical procedures in an attempt to salvage the limb rather than electively amputate it to improve long- terms functionality and/or quality of life. Acute treatment of an injury is not limb salvage. The medical definition of salvage therapy is a final treatment for people who are not responsive to or cannot tolerate other available therapies for a particular condition. The applicant’s procedure was a limb saving procedure that does not meet the TSGLI guidelines for limb salvage. b. There is no credible, collaborated, and/or confirmed consideration of amputation as a primary treatment option after the initial life/limb saving surgery. A skin graft does not make a procedure a limb salvage. There is no discussion of amputation versus retention of the limb in his medical records. The applicant never chose to pursue limb salvage over amputation of a limb because it was not a rational or realistic treatment option, so it was not offered. c. The ARBA senior medical advisor confirmed the prior TSGLI decisions that the applicant’s right leg surgeries were not limb salvage procedures. Surgical treatment of acute injury to the right leg was limb saving and followed by additional wound care. The treatment provided was not limb salvage. The history and medical records do not support the claim. As such, he recommended denial of the applicant and Counsel’s request for award of TSGLI benefits for limb salvage. A copy of the complete medical advisory was provided to the Board for their review and consideration. 24. A copy of the advisory opinion was provided to the applicant on 12 February 2019 and he was given an opportunity to submit comments. Counsel replied on 19 February 2019, stating: a. The advisory opinion’s analysis and conclusion are inadequate and incorrect. The advisory opinion discusses irrelevant material at length, such as post-traumatic stress disorder and medical records not at issue, and incorrectly applies TSGLI limb salvage loss standards. The overall tone of the advisory opinion is dismissive of the seriousness of the injury and purpose of the surgeries and the reviewer does not carefully weigh evidence in support of the claim. b. A presumption for denial is apparent throughout the advisory opinion. The reviewer’s conclusion was set before the claim and appeal were even reviewed. This, unfortunately, has been the case from the start. Like the reviewer, the TSGLI office has misinterpreted the TSGLI standard for limb salvage surgeries and provided a narrower standard that is not consistent with the TSGLI standard. c. The TSGLI standard reads, “If the member undergoes a series of operations designed to avoid amputation of an arm or a leg while at the same time maximizing the limb’s functionality. The surgeries typically involve bone and skin grafts, bone resection, reconstructive, and plastic surgeries and often occur over a period of months or years. Note: A complex leg or arm fracture does not automatically qualify as limb salvage. Limb salvage is based upon both the nature of the surgeries involved and whether the member’s limb was medically at risk of amputation.” d. In this case, the reviewer uses an external definition of “salvage therapy” and narrows the definition above to allow an advisory opinion unfavorable to the claimant. He tries to explain the difference between “limb saving” and “limb salvage” despite both definitions including surgeries or a surgery “to avoid amputation of an arm or a leg.” The difference between the two lies in whether there were multiple surgeries. Limb saving can involve one surgery, while limb salvage under the TSGLI definition includes “a series of operations.” e. Here, the applicant required four compartment fasciotomies and a skin graft of his right leg. These two procedures meet “a series of operations” requirement to make the surgeries both limb saving and limb salvage procedures. Additionally, the advisory opinion does not make mention of Counsel’s 5 May 2017 letter to ARBA with the DD Form 149, so he has enclosed a copy of it with his rebuttal. Many of the points within it directly rebut and discredit the findings of the examiner in the advisory opinion. f. Further, the advisory opinion relies on an outdated and incorrect definition of the limb salvage to include “the option of amputation of limb(s) was offered to the patient as a medically justified alternative to limb salvage AND the patient has chosen to pursue limb salvage.” This definition is nowhere in the current TSGLI Procedures Guide, CFR, Title 38, 9.20, or the TSGLI application. This misrepresentation of the correct standard of limb salvage discredits the advisory opinion and shows it is prefaced on the wrong standard. g. It should be noted that the TSGLI Procedures Guidelines have changed over the years, which are reflected in the Revision History within the TSGLI Procedures Guide, including the following revisions: * 30 May 2013, revision number 2.19, removed “offer” of amputation from limb salvage standard * 16 December 2015,revision number 2.32, updated verbiage on page 42 to match verbiage on page 16 regarding limb salvage h. The TSGLI Procedures Guide from 2013 and 2015 are unavailable to the undersigned; however, it is apparent that the reviewer is relying on language in the TSGLI that was removed on 30 May 2013. This is either intentionally misleading, a clear error, or both. i. Also provided in the 7 May 2017 letter to ARBA and the accompanying exhibits, multiple surgeons and treating physicians have certified on the TSGLI application or otherwise supported the finding that the surgeries at issue were limb salvage surgeries. Moreover, the anonymous reviewer in this medical opinion had not identified himself as a surgeon. Despite not attaching his name to the opinion, Counsel knows who this reviewer is and he is not a surgeon. Likewise, C____P___, (HRC, Chief, Special Compensation Branch) and all other decision-makers to date are not surgeons and have not identified themselves as surgeons. Being such, they lack the skill and experience needed to determine whether these surgeries are limb salvage surgeries, especially when considered under an incorrect standard narrower than the actual current TSGLI definition of limb salvage surgeries. Thus, the opinions in support of the applicant’s claims outweigh the reviewer’s opinion and the opinions of the decision makers to date. j. Additionally, the surgeries at issue were necessary to maximize the right limb’s functionality. Absent the surgeries, the applicant’s right limb would have limited function. Therefore, absent the surgeries, the limb’s functionality would be impacted, so the surgeries were also for the purpose of “maximizing the limb’s functionality.” k. Further, the surgeries involved a skin graft, which falls into the category of the examples in the written TSGLI standard of limb salvage surgeries, which provides: “the surgeries typically involve bone and skin grafts, bone resection, reconstructive, and plastic surgeries.” The surgeries do meet the requirement of “limb salvage is based upon both the nature of the surgeries involved and whether the member’s limb was medically at risk of amputation.” Thus, the surgeries at issue meet all elements of limb salvage surgeries under the TSGLI definition. 25. 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) 26. 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. 27. 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 and/or traumatic brain injury resulting in the inability to perform 2 Activities of Daily Living. 28. With regard to Limb Salvage, the 29 December 2015 version of the guide states the member is eligible for a TSGLI benefit if the member meets the following standard: a. If the member undergoes a series of operations designed to avoid amputation of an arm or a leg while at the same time maximizing the limb’s functionality. The surgeries typically involve bone and skin grafts, bone resection, reconstructive, and plastic surgeries and often occur over a period of months or years. b. A complex leg or arm fracture does not automatically qualify as limb salvage. Limb salvage is based upon both the nature of the surgeries involved and whether the member’s limb was medically at risk of amputation. c. A surgeon must certify that the patient is undergoing limb salvage surgery as defined above. BOARD DISCUSSION: After reviewing the application and all supporting documents, including the ARBA senior medical advisory opinion, and the applicant’s statement and rebuttal, the Board found that partial relief was warranted. 1. The Board found that full relief was warranted regarding the applicant’s TSGLI Claim. The Board found that prior denials of the applicant's claim by the Office of Servicemembers' Group Life Insurance (OSGLI), as well as at all appellate levels within Human Resources Command (HRC), hinged on three factors: first, that the applicant’s claimed qualifying loss did not meet the definition of “Limb Salvage”, second, that there was no certifying surgeon signature on the TSGLI application form stating that the applicant underwent “Limb Salvage”, and third, that the applicant did not choose between “Limb Salvage” and amputation. The Board found that the prior denials were unjust as follows: a. Regarding whether the procedures on the applicant’s right leg constituted “Limb Salvage” to save the leg from amputation, the preponderance of evidence shows that from 11 April 2010 to 11 May 2010, the applicant underwent several complicated, successive surgeries to save his right leg, including, but not limited to, skin grafting, artery repair and fasciotomies, which the Board found to be indicative of “Limb Salvage” as that term is defined in the 29 December 2015 version of the TSGLI Procedural Guide. b. Regarding the requirement for a surgeon’s signature on the TSGLI application form certifying that the applicant underwent “Limb Salvage” surgery, the Board found the applicant’s medical records, which listed “traumatic right posterior knee arthrotomy (incision into a joint) with medial tibial plateau fracture,” as the injury with “right calf and popliteal exploration with four-compartment fasciotomies angiogram (X-ray of blood or lymph vessels) of right lower extremity” as the surgical procedures performed, written by the operating surgeon with subsequent corroboration of these procedures by other surgeons, in the applicant’s record to be sufficient evidence that a surgeon certified the procedures. c. Regarding the question of applicant choice, the Board found that in light of the conflicting guidance in the Code of Federal Regulations and the TSGLI Procedural Guide regarding the requirement (or lack thereof) for "applicant choice" of “Limb Salvage” vice amputation, the applicant should receive the benefit of the doubt on this issue and, therefore, should not have to demonstrate that he chose to pursue "Limb Salvage", in lieu of amputation, in order to establish his entitlement to a $50,000 payment for "Limb Salvage". 2. The applicant's request for a personal appearance hearing was carefully considered. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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 that 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 applicant be corrected g to show that “Limb Salvage” was properly annotated as a qualifying loss on the applicant’s TSGLI application form and that OSGLI and HRC approved an award of $50,000 in TSGLI benefits based on the applicant’s claim for “Limb Salvage” of his lower right leg. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to a personal appearance. 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. 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 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 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. With regard to Limb Salvage, the 29 December 2015 version of the guide states the member is eligible for a TSGLI benefit if the member meets the following standard: a. If the member undergoes a series of operations designed to avoid amputation of an arm or a leg while at the same time maximizing the limb’s functionality. The surgeries typically involve bone and skin grafts, bone resection, reconstructive, and plastic surgeries and often occur over a period of months or years. b. A complex leg or arm fracture does not automatically qualify as limb salvage. Limb salvage is based upon both the nature of the surgeries involved and whether the member’s limb was medically at risk of amputation. c. A surgeon must certify that the patient is undergoing limb salvage surgery as defined above. 6. 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. d. Limb Salvage: A series of operations designed to save an arm or leg rather than amputate. 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. a. 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. b. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170001979 16 1