IN THE CASE OF: BOARD DATE: 16 April 2021 DOCKET NUMBER: AR20170019320 APPLICANT REQUESTS: through counsel: * reversal of the U.S. Army Human Resources Command, TSGLI office decision to deny payment of his Traumatic Servicemembers' Group Life Insurance (TSGLI) for the loss of his activities of daily living (ADLs) for 90 days * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant’s attorney’s proof and acknowledgement of representation, unlimited authorization, exclusive assignments of rights and power of attorney, dated 30 January 2015 * Spouse letter, dated 27 November 2010 * SGLV Form 8600 (Application for TSGLI Benefits), dated 29 June 2012 * TSGLI Application for Benefits claim, dated 17 July 2012 with supporting documentation and medical records * U.S. Army HRC (AHRC) TSGLI office undated claim denial letter * SGLV Form 8600 (Application for TSGLI Benefits), dated 29 June 2012 * Independent nurse reviewer statement, dated 3 March 2015 * Course of treatment time-line, dated 3 March 2015 * AHRC TSGLI office denial letter, dated 18 February 2015 * Counsel brief, dated 3 March 2015 * Declaration statement from applicant, dated 3 March 2015 * Declaration statement from applicant’s aunt, dated 3 March 2015 * Counsel brief, dated 24 August 2015 * Counsel brief, dated 31 May 2016 * Independent nurse reviewer statement, dated 30 May 2016 * U.S. Army HRC Office of the Adjutant General (TAG) memorandum to counsel, dated 31 October 2017 * Applicant’s various medical records for the period from 1 November 2010 to 1 December 2012, created on 4 February 2015 * TSGLI Procedure Guide * Applicable case and statutory laws FACTS: 1. The applicant states through his attorney: a. The TSGLI office denied the claim and subsequent appeals for the loss of ADLs for 90 days, and that benefits for only 15 days were provided. The most recent decision, dated 31 October 2017, provides reliance on some of the medical records, however, a close examination of the records does not show a complete and direct assessment of assistance that was required due to the traumatic brain injury (TBI) losses for a period of 90 days. The nature of the injuries, treatment, medical records, and statements show some improvement was made, but did not alleviate the requirement of ADL assistance until after 90 days. b. The nature of the injuries, treatment, medical records, and statements show some improvement was made, but the improvement did not alleviate the requirement of ADL assistance until after 90 days. Statements clearly speak to the limitations and other issues despite improvement, and are consistent with the medical records. Only two ADLs with physical assistance are required, however, the applicant claimed the five ADLs of dressing, toileting, eating, bathing, and transferring. The statements, medical opinions, and overall records outweigh a few notes within the records that do not adequately assess the ADLs, especially the standby and verbal requirements, which are relevant to this case and allow for the qualification for TSGLI benefits. c. The TSGLI application and procedures guide have minimal requirements for the ADL tasks that require assistance from another person to perform ADL tasks, and that there only needs to be a small part of each ADL that requires assistance, and that verbal/standby is permitted. Counsel emphasized OR and ANY in the following ADL tasks: * get and put on clothing, socks, or shoes * bathe (including sponge bath) more than one part of the body * get in or out of a tub or shower * move into or out of bed or chair * use a bedpan or urinal to toilet * require assistance from another person with any of the following where there only needs to be a small part of each ADL that requires assistance, and verbal and standby is permitted: going to and from the toilet, getting on and off the toilet, cleaning self after toileting, or getting clothing off and on d. The reading of the decision is strict and looks to require assistance with the complete ADL in all aspects. This rigid assessment is not in accordance with the law, is in error and unjust, and should be corrected. e. It should also be noted that the TSGLI benefits are administered by the Secretary of the Veterans Administration and 38 USC (US Code) § 5107(b) is fully applicable to TSGLI benefit determinations. 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. 38 U.S.C. § 5107(b); see also Koffarnus v. United States, 2016 WL 1261155, *6 n. 6 (W.D. Ky. Mar. 30. 2016). f. Counsel provided the applicant’s power of attorney, dated 30 January 2015, that shows the law offices of P____ S. C____ APC was representing him in the entirety of his claim. 2. He enlisted in the Regular Army (RA) on 23 March 2006. 3. The applicant’s Enlisted Record Brief (ERB) shows he: * served 15 months in Iraq (IZ) from 12 December 2007 to 17 February 2009 * served 6 months in Afghanistan (AF) from 9 August 2010 to 9 February 2011 * was awarded the combat action badge (CAB) 4. Orders, dated 7 February, published by the Landstuhl Regional Medical Center (LRMC), show the applicant was reassigned with a medical evacuation for continued medical care. 5. The applicant’s spouse, T____, provided a statement, dated 27 November 2010, for the period 8 February to 20 November 2011, wherein she states, in part: a. She had to rent a car to take her husband to all of his formations, doctor’s appointments, and everywhere. She also had to walk with him because his balance was so bad that he would fall, and he could not walk up/down stairs without assistance. She stayed within an arm’s reach everywhere her husband went. She obtained a medical power of attorney because she had to be directly involved with all of her husband’s treatment, because he had issues with speaking, balance, cognitive issues, and short and long term memory loss. b. She had to do everything for him, such as lay out his clothes and help him dress for work. He would not remember to put on socks, he would forget to turn his shirt inside out, and he could not remember what side his patches went on his uniform. She had to fix all of his meals and remind him to eat. She had to be next to him at all times while he was moving up and down stairs due to his risk of falling. She had to help him out of the shower, remind him to wash, and remained close to him while showering so he would not fall. He is stubborn and would try to do things on his own and had fallen numerous times. She brought it to the attention of the nurse case manager to help reinforce the issue and to make him understand that she was helping him for his own safety. 6. A TBI clinic memorandum for record, dated 17 November 2011, referencing his education compensation, provides supplemental information for the applicant’s TSGLI claim. The document shows in part, the impact from the blast resulted in an altered state of consciousness as well as cognitive difficulties, and although he has improved over the past year, not all of the symptoms resolved. His residual educational impairments included difficulty in: * multi-tasking * executive functioning skills * processing speed * making inferences * attention and concentration 7. A warrior resiliency and recovery center memorandum for record, dated 4 April 2012, shows in part, the applicant was thoroughly evaluated and treated for a mild TBI documented as combat related. Initially, he was quite symptomatic in terms of cognition, but with intensive treatment over time he subsequently improved. A complete military functional assessment program course was completed to verify that he was able to return to duty. The clinical opinion indicated he did not have a clinically significant post-concussive syndrome at that time. 8. A record TSGLI Claim Certification Worksheet, dated 4 December 2012, shows he qualified for TSGLI payment under 38 CFR 9.20, and his claim was certified for $25,000 for the loss of ADLs of bathe and dress for 15 days due to a TBI. His other losses claimed for hospitalization of 15 days, and loss of ADLs due to a TBI up to 90 days, were not found/approved, because the medical documentation did not indicate the applicant’s loss met the TSGLI minimum standard. 9. A TBI clinic memorandum for record, dated 19 April 2012, provides occupational therapy supplemental information for the applicant’s TSGLI claim. The document shows, he was evaluated on 8 March 2011, and treated twice weekly from 1 August to 4 November 2011 following he was referred to the clinic for post-concussive symptoms related to his TBI. a. His initial evaluation demonstrated decreased independence and efficiency with basic and instrumental ADLs. It was reported he required assistance for a number of daily tasks to include walking up/down stairs and transferring in/out of the tub due to dizziness and imbalance, and his spouse managed his appointments, medications, and laying out of his clothes due to his memory and attention problems. b. Upon completion of therapy, he showed improvements in all areas, but continued to demonstrate mild inefficiencies with executive functions and problem solving. It was recommended for him to continue his use of compensatory strategies to increase independence in basic and instrumental ADLs. 10. A TBI clinic memorandum for TSGLI, dated 19 April 2012, shows in part, the applicant’s initial speech-language pathology evaluation was conducted on 7 March 2011. The evaluation noted his affect was flat, his speech was slowed and monotone, and his processing was delayed. His complaints were constant tinnitus, expressive language problems, inability to remember events and conversations from the prior day, difficulty multi-tasking, slowed reading, sloppy writing, decreased math skills, organizational abilities, attention, auditory comprehension and problem solving. His wife was present for the evaluation and stated he would forget to eat. 11. The applicant’s SGLV 8600, dated 29 June 2012 shows in: a. Part A (Member’s Claim Information and Authorization) the applicant requested TSGLI benefits after suffering a TBI when he was exposed to a suicide bomber and an improvised explosive device (IED) on 27 November 2010. b. Part B (Medical Professional’s Statement) was completed by RN L____ A____ on 28 June 2012. The form shows the applicant was unable to independently perform ADLs due to his TBI he suffered from a blast injury, which resulted in a post-concussion with a loss of conscience (LOC), and amnesia. The qualifying losses suffered by the applicant included his inability to: * bathe independently; required physical hands-on assistance, stand-by assistance within arm’s reach for help in/out of the tub, and reminder to wash within arm’s reach at all times * dress independently; required physical hands-on assistance, stand-by assistance within arm’s reach for help with dressing (socks and boots), and verbal reminder to put on all clothing * toilet independently; required physical hands-on assistance and stand-by assistance within arm’s reach for help to transfer to/from bedside toilet * transfer independently; required physical hands-on assistance, stand-by assistance within arm’s reach, and verbal assistance when moving from room to room and up/down stairs c. The medical professional commented that the applicant continued to have headaches, episodes of short term memory loss, and was referred back to the TBI center for more evaluations and treatment. Tinnitis and his sleep difficulties were continuing problems. 12. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he served in Iraq from 12 December 2007 to 17 February 2009, and in Afghanistan from 9 August 2010 to 9 February 2011. He completed 7 years, 10 months, and 28 days during the period. His military occupational specialty (MOS) was 31B (military police). His awards include, among others, the Afghanistan Campaign Medal with campaign star, Iraq Campaign Medal with two campaign stars, Purple Heart, and Combat Action Badge. He was honorably retired from service with a disability on 20 February 2014 under the provisions of AR 635-40 (Personnel Separations – Disability Evaluation for Retention, Retirement, or Separation), Chapter 4 (Disability Evaluation System (DES)). In effect, he was placed on the Temporary Disability Retired List (TDRL). 13. Counsel’s brief, dated 3 March 2015, shows he requested TSGLI benefits for the loss of his ability to independently perform at least two ADLs for over 90 days, wherein he stated: a. The applicant arrived at an army medical center on 8 February 2011. He was discharged to the care of his wife from there, and underwent extensive TBI therapy for months until discharged in November 2011. The applicant was unable to independently bathe, dress, toilet and transfer without verbal reminders, physical assistance and stand-by assistance for a period of over 90 consecutive days. b. The medical records were reviewed by T____ B____, an independent registered nurse, and confirmed the extent of the traumatic injuries, and the impact of those injuries on the applicant. Her statement and timeline of treatment were provided as exhibits C and D. c. Exhibits, declarations, medical records, and other supporting evidence demonstrate the applicant was entitled to recovery of $1000,000,00 under the Traumatic Service Member’s Life Insurance (TSMGLI) coverage. The applicant was previously awarded $25,000.00 for his first 15 days of ADL losses. This claim was submitted for an additional loss of ADL days with a request for the additional $75,000.00 benefit the applicant qualified for under the TSGMLI schedule of losses # 17 for suffering a TBI resulting in his inability to perform at least two ADLs for over 90 consecutive days. 14. An updated SGLV 8600, dated 2 February 2015, was provided and shows: a. Part A (Member’s Claim Information and Authorization) shows the applicant requested TSGLI benefits due to suffering TBI injuries and posttraumatic stress disorder (PTSD) after his 27 November 2010 incident in Afghanistan. b. Part B (Medical Professional’s Statement) was completed by T____ B____, the independent registered nurse on 3 March 2015. The form shows, in part, the applicant’s symptoms included severe headache, cognitive deficits, short-term and long- term memory loss, expressive language problems, and dizziness with imbalance began to worsen. He was later discharged to the care of his wife, wherein she described him as a small child requiring daily verbal reminders to eat, dress properly, and bathe. He was unsteady causing him to be at risk for falls while showering and ambulating. The applicant was awarded the first 15 days of ADL losses by TSGLI, and this claim is for his additional losses. The applicant’s inability to independently perform ADLs included his inability to: * bathe independently; required physical hands-on assistance, stand-by assistance within arm’s reach for help in/out of the shower to ensure he did not fall, and verbal reminders to groom and bathe * dress independently; required stand-by assistance within arm’s reach to ensure completion of tasks, and verbal reminder to choose proper clothing * eat independently; required verbal assistance reminders to eat * toilet independently; required physical hands-on assistance and stand-by assistance within arm’s reach for help to go to/from bathroom to ensure he did not fall * transfer independently; required physical hands-on assistance, stand-by assistance within arm’s reach to ensure he did not fall, and verbal redirection to prevent him from getting lost c. RN, T____ B____, the medical professional commented that the applicant’s TBI resulted in severe cognitive impairment, short-term and long-term memory loss, language deficits and dizziness with an imbalance that lasted for months, which were all supported by medical documentation and memorandums issued by his treating medical providers. The applicant would not have been able to perform the ADLs on his own, or in a manner deemed safe, without the assistance provided by his wife. 15. A declaration statement by the applicant, dated 3 March 2015, shows: a. When he returned home, he could not walk and talk, and had to be assisted by his wife. His mom and aunt came from another state, but were only able to stay with him a couple of weeks. He honestly, did not remember being home for the first 6-7 months. He remembered he required help with the shower and transferring from room to room. He could not walk upstairs at all, and in fact fell down the stairs once. He could not stand up in a shower and was unsteady on his feet. He was pretty sure he ate by himself but could not cook. b. When he came back from the Army, they evaluated him for a TBI, but was informed it was not a TBI, and that it was PTSD. He was sent for a mental health evaluation, and they informed him it was not that the case. Rather he had something wrong with his brain. It took about two and-a-half months before he could get back into the TBI program because they were so full. During that time, he had family members come over and take care of him to include transporting and feeding him. He was eventually returned to duty (RTD) but within 2 weeks his chain-of-command noticed something was wrong. He was sent through another TBI program, and then they started to medically retire him. 16. The previously submitted spouse statement, dated 27 November 2010, was provided for the period from 8 February to 20 November 2011, wherein she states, in part, that she obtained a medical power of attorney because she had to be directly involved with all of her husband’s treatment, because he had issues with speaking, balance, cognitive issues, and short and long term memory loss. She had to do everything for him. She had to fix all of his meals and remind him to eat. She had to be next to him at all times while he was moving up and down stairs due to his risk of falling. She had to help him out of the shower, remind him to wash, and remained close to him while showering so he would not fall. He is stubborn and would try to do things on his own and had fallen numerous times. She brought it to the attention of the nurse case manager to help reinforce the issue and to make him understand that she was helping him for his own safety. 17. Nurse T___ B____ provided an independent nurse reviewer statement, dated 3 March 2015, wherein she states, in part: a. She reviewed the records provided to her as they relate to the traumatic injuries sustained by the applicant on 27 November 2010. A review of his records confirms the applicant suffered a TBI after his exposure to an IED suicide bomb exploded approximately 20 meters from him. He was knocked to the ground hitting his head and sustained a LOC for approximately 30 minutes, and he later awoke dazed and confused. He was treated by a medic in theater the next day for a worsening headache, and was released on rest and recuperation (R&R) leave. b. During his leave, and after his return to the forward operating base (FOB) during the third week of January 2011, his TBI symptoms began to worsen, and he began to experience short-term memory loss, cognitive deficits and dizziness with imbalance. Further testing indicated a positive TBI, and he was medically evacuated to an air base where he was placed in a level III mild TBI facility, which is a facility with the highest level of care given to Servicemembers with severe TBI symptoms. He remained at the facility until being medically evacuated to the LRMC on 4 February 2011. c. Because of worsening symptoms, further neurological evaluations were performed, which revealed marked postconcussion syndrome. He was further transferred back to a U.S. Army medical facility in Kentucky for extensive TBI treatment, which included TBI occupational therapy, TBI physical therapy, and TBI speech and language. Neuropsychological testing showed severe short-term memory loss, expressive language problems, cognitive impairment and balance issues. His extensive TBI therapy continued for months. The applicant was then discharged from TBI treatment in November 2011 after showing much improvement. A course of treatment timeline was attached for review. d. From 27 November 2010 through 15 June 2011, the applicant required constant verbal redirection and standby assistance. Even after being discharged home to the care of his wife, he required 24-hour supervision. Medical documentation and a statement provided by his wife revealed the magnitude of her husband’s brain injury. Medical staff noted symptoms of a severe cognitive impairment, short-term memory loss and imbalance. Occupational and speech/language therapists issued memorandums to the TSGLI in April 2012 to support his ADL losses. Each provider detailed the applicant’s symptoms and course of treatment. They were attached for review. e. To further corroborate his ability to perform ADLs independently, the applicant’s wife provided a statement indicating her husband was unable to remember to eat, and noted he was very slow and had difficulty processing thoughts. He had severe short- term and long-term memory impairment. Due to his balance issues, he required assistance getting in/out of the shower with stand-by assistance while showering and ambulating due to his high risk for falls. His clothes had to be laid out for him. Although for the most part, the applicant could physically perform his ADLs independently, he required constant supervision and redirection to complete his ADLs and maintain safety. f. Due to the seriousness of the applicant’s TBI resulting in months of treatment for severe cognitive impairment, short-term memory loss, confusion, speech/language deficits and issues with balance, it was in her opinion he would have required verbal redirection with some physical and stand-by assistance for at least 90 days following his TBI. 18. Nurse T____ B____ provided a 15-page course of treatment time-line, dated 3 March 2015, from his initial incident on 27 November 2010 to his discharge from his TBI occupational therapy on 7 November 2011. 19. Nurse T____ B____ also provided, as part of her 15-page course of treatment time- line, the following, that show, in part: a. A Department of the Army memorandum for record, dated 4 April 2012, from DR. D____ T____, shows the applicant was thoroughly evaluated and treated for a mild TBI at the warrior resiliency and recovery center for his documented combat related TBI events. The applicant was initially quite symptomatic in terms of his cognition. Over time with intensive treatment he substantially improved. b. A memorandum for TSGLI, dated 19 April 2012, from J____ O____, shows during his initial evaluation demonstrated decreased independence and efficiency with basic and instrumental ADLs. It was reported he required assistance for a number of daily tasks to include walking up/down stairs and transferring in/out of the tub due to dizziness and imbalance, and his spouse managed his appointments, medications, and laying out of his clothes due to his memory and attention problems. Upon completion of therapy, he showed improvements in all areas, but continued to demonstrate mild inefficiencies with executive functions and problem solving. It was recommended for him to continue his use of compensatory strategies to increase independence in basic and instrumental ADLs. c. A memorandum for TSGLI, dated 19 April 2012, from C____ Z____, shows an initial speech-language pathology evaluation was conducted on 7 March 2011. The evaluation noted his affect was flat, his speech was slowed and monotone, and his processing was delayed. His complaints were constant tinnitus, expressive language problems, inability to remember events and conversations from the prior day, difficulty multi-tasking, slowed reading, sloppy writing, decreased math skills, organizational abilities, attention, auditory comprehension and problem solving. His wife was present for the evaluation and stated he would forget to eat. Initially during therapy, he required a good amount of assistance to organize his thoughts and processing of information. 20. An AHRC, Special Compensation Branch, TSGLI letter, dated 13 August 2015, shows: a. The U.S. Army TSGLI Certifying Office evaluated his claim for benefits under TSGLI. His claim for his event in Afghanistan on 27 November 2010, was previously approved for $25,000 for 15 days of TBI ADL losses. Other losses claimed were not approved. This letter explained why these losses were not approved, his right to appeal this decision, and the general requirements for TSGLI benefits. His evaluated losses at this time were for hospitalization, and ADLs due to TBI up to 90 days. b. His claim for hospitalization was not approved because his loss did not meet the TSGLI medical standard. The medical documentation provided did not clearly reflect the applicant was an inpatient for 15 consecutive days. Regulations that govern the TSGLI program, hospitalization is defined as an inpatient hospital stay, which lasts 15 or more consecutive days in a hospital or series of hospitals, which include combat support hospitals, Air Force theater hospitals, and Navy hospital ships. The number of days includes transportation time from the site of the injury to the hospital, the day of admission and day discharge. c. His claim for TBI-ADL loss was not approved because his loss did not meet the TSGLI criteria. While the letters provided were taken into consideration, the medical documentation provided with his claim indicated he had acute stress reaction characterized by flashbacks, anxiety and sleep related issues. According to the physician who reviewed him at the time, the concussion was probably playing some role in his issues, however, he characterized the concussion as minor and stated that the cognitive deficits are likely secondary to acute stress due to PTSD. d. The regulations that govern the TSGLI Program, TBI is covered if it causes the inability to independently perform at least two ADLs for at least 15 consecutive days. 60 and then 90 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) or, * stand-by assistance (within arm’s reach) or, * verbal assistance (must be instructed) e. The TSGLI regulations also state if the Soldier is able to perform the activity by the use of accommodating equipment/adaptive measures (such as a PDA, cane, crutches, wheelchair, etc.) then the Soldier is considered able to independently perform the activity. f. The applicant was advised of his right to appeal this decision within 1 year and to provide supporting evidence. 21. Counsel’s brief, dated 24 August 2015, shows he requested that the applicant’s prior denied claim for TSGLI benefits for losses be extended beyond 90 days due to TBI, and non-TBI losses be evaluated for up to 120 days. He stated, that in the 13 August 2015 letter, the applicant’s claim for the event in Afghanistan was approved for 15 days of TBI ADL losses. He reiterated the facts of the incident and ensuing treatment timeline that began on 27 November 2010 until he was discharged home to the care of his wife in 2011, his extensive TBI therapy for months, and his eventual discharge in November 2011. He stated the applicant was unable to independently bathe, dress, toilet and transfer without verbal reminders, physical assistance and stand-by assistance for a period over 90 consecutive days. a. The limitations in ADLs were demonstrated by the declaration statement of the applicant as exhibit A, and his wife as exhibit B. His previously submitted documents were also enclosed as exhibit C on an attached disk, which included all medical records. b. He is requested TSGLI evaluate all the evidence submitted to support the applicant’s TSGLI claim for ADL losses extending beyond the 90 days due to the TBI, but ask that the non-TBI losses up to 120 days be evaluated as well. Servicemembers pay into the SGLI/TSGLI insurance program each month with the expectation that if they are severely injured, there will be financial assistance to help them and their families. After being traumatically injured, the applicant now finds himself fighting for his TSGLI benefits. c. Unfortunately, the government is the insurance policy holder of the SGLI, which limits any lawsuit or bad faith and only allows for federal review under the arbitrary and capricious standard. Nonetheless, the standard of review here is only under the preponderance of evidence, or 50.1 percent or more of a showing that evidence meets the losses established in the guidelines. The onus is in the TSGLI office to recognize severely injured Servicemembers and issue the benefit due. d. Further, the TSGLI office must work only within the guidelines of 38 C.F.R. 9.20. The absence of potential bad faith insurance actions, which is a check and balance system on wrongful denials, creates a greater responsibility of the TSGLI office to be self-policing, and there must be careful consideration to avoid wrongful denials, to fully consider the totality of all evidence and provide the benefit when due. e. In addition to the previously provided declarations, records, and other evidence, enclosed as new and material evidence, which was previously not considered, is a statement from the applicant’s aunt, B_ E_ as exhibit D. f. The 7 March 2011 records state, the applicant had problems going up/down stairs, was forgetting to eat and his wife made sure he did, and his balance was off. g. As late as 11 April 2012, his wife assisted with his bathing due to his decreased balance in the shower when standing due to his dizzy spells. h. Attached exhibits, declarations, medical records, and other supporting evidence demonstrate the applicant was entitled to recovery of $1000,000,00 under the Traumatic Service Member’s Life Insurance (TSMGLI) coverage. The applicant was previously awarded $25,000.00 for his first 15 days of ADL losses. This claim was submitted for an additional loss of ADL days with a request for the additional $75,000.00 benefit the applicant qualified for under the TSGMLI schedule of losses # 17 for suffering a TBI resulting in his inability to perform at least two ADLs for over 90 consecutive days. i. His request included the following previously provided documents: * applicant’s power of attorney, dated 30 January 2015 * applicant’s declaration statement, dated 3 March 2015, at tab A * applicant’s spouse statement, dated 27 November 2010, at tab B * course of treatment timeline, dated 3 March 2015, at tab E 22. A self-authored statement from B____ E____, the applicant’s aunt, dated 3 March 2015, shows in part, that the applicant was very unsteady on his feet, complained of headaches, could not remember things, was not sleeping and was in distress. He also had issues with loud noises, and a lot of people being around him. 23. An undated AHRC, Special Compensation Branch, TSGLI letter, shows: a. The U.S. Army TSGLI Certifying Office evaluated his claim for benefits under TSGLI. His claim for his event in Afghanistan on 27 November 2010, was previously approved for $25,000 for 15 days of TBI ADL losses. Other losses claimed were not approved. This letter explained why these losses were not approved, his right to appeal this decision, and the general requirements for TSGLI benefits. b. His claim for hospitalization was not approved because his loss did not meet the TSGLI medical standard. The medical documentation provided did not clearly reflect the applicant was an inpatient for 15 consecutive days. Regulations that govern the TSGLI program, hospitalization is defined as an inpatient hospital stay, which lasts 15 or more consecutive days in a hospital or series of hospitals, which include combat support hospitals, Air Force theater hospitals, and Navy hospital ships. The number of days includes transportation time from the site of the injury to the hospital, the day of admission and day discharge. c. His claim for other than TBI (OTI)/TBI ADL loss was not approved because his loss did not meet the TSGLI medical standard. Within the thousands of pages of documentation provided with the claim, a large majority of the documents were duplicates of each other, and did not indicate the applicant was rendered incapable of performing two or more ADLs for at least 30 (TBI) or 60 (OTI) consecutive days or greater. While the letters provided were taken into consideration, the documentation submitted continued to reiterate that while he did sustain a mild TBI, his cognitive deficits were related to and likely secondary to the acute stress caused by his PTSD. d. The regulations that govern the TSGLI Program, state that in order 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) or, * stand-by assistance (within arm’s reach) or, * verbal assistance (must be instructed) e. The TSGLI regulations also state if the Soldier is able to perform the activity by the use of accommodating equipment/adaptive measures (such as a PDA, cane, crutches, wheelchair, etc.) then the Soldier is considered able to independently perform the activity. f. The applicant was advised of his right to appeal this decision within 1 year and to provide supporting evidence. 24. A DA Form 199 (Informal Physical Evaluation Board (IPEB) Proceedings), dated 24 September 2015, shows the PEB convened and determined the applicant remained unfit, and recommended a 70 percent permanent disability retirement for his posttraumatic stress disorder (PTSD) and TBI with residual headaches. On 8 October 2015, the applicant concurred with the findings of the IPEB and waived a formal hearing in his case. 25. Order D288-58, dated 15 October 2015, published by the U.S. Army Physical Disability Agency (USAPDA) shows he was placed on the temporary disability retired list (TDRL) on 21 February 2014. He was removed from the TDRL on 15 October 2015 when he was permanently retired with a 70 percent disability. His disability was based on an injury received in the line of duty as a direct result of armed conflict, or caused by an instrumentality of war during a period of war. 26. Counsel’s brief, dated 31 May 2016, shows he appealed to the TSGLI office for the applicant’s partially denied claim for benefits. He requested that the TSGLI office reevaluate all of the previous evidence as well as new and material evidence submitted therein to support the applicant’s claim for ADL losses. After that review, the applicant and counsel request a decision properly allowing an additional $75,000.00 for the maximum losses of ADL losses due to the TBI. All prior claim and all submitted documents in support of the claim were attached as exhibit A on a provided disk. As new and material evidence that warrants reconsideration of this claim and appeal, the applicant’s full file and records were reviewed by N____ O____, an independent registered nurse (RN), who commented on the extent of the traumatic injuries as well as the impact of those injuries on the applicant. Her complete statement was attached as exhibit B. Counsel further stated: a. Throughout the records, there seemed to be a tendency for certain providers to “pass off” the TBI symptoms as part of the applicant’s PTSD. While it may be impossible to clearly separate the two, there were certain features that related more to one than the other. His PTSD symptoms were more anxiety related, such as his fear of crowds and nightmares about the horrors of death he witnessed. His TBI symptoms were more consistent with the post-concussion syndrome, such as memory loss and headaches. For a Soldier, such as the applicant, who had multiple blast exposures, the TBI must take priority consideration. b. Given the available records and his history of blast exposures, including one that knocked him unconscious, and the supporting documentation of his caregivers, it is more than reasonable to conclude that his symptoms were directly related to his TBI injury on 27 November 2010. The documentation both from medical providers and his family show a picture of a man who could not take care of himself independently. Counsel supports the statement of RN T____ B____, that the applicant needed physical and standby assistance until at least 14 April 2011, and he needed standby assistance to be reminded to eat at least until 7 March 2011. This is over 100 days of assistance needed after his injury. c. His request included the previously provided applicant’s power of attorney, dated 30 January 2015. 27. N_ O_ provided an independent nurse reviewer statement, dated 30 May 2016, wherein she states, in part: a. She reviewed the records provided to her as they relate to the traumatic injuries sustained by the applicant on 27 November 2010. She also reviewed the timeline and statement of RN T____B____, as well as those of the applicant and his caregivers. b. A review of his records confirms the applicant suffered a TBI after his exposure to an IED suicide bomb exploded approximately 20 meters from him. He lost consciousness for approximately 30 minutes. He was evaluated the next day for worsening headache, and military acute concussion evaluation (MACE) testing, which was normal at that time. He was released for R&R during December 2010, and was told to take Tylenol for his headaches. c. During his R&R it became obvious to the applicant’s family that something was wrong. He experienced classic signs and symptoms of a post-concussion syndrome. Although they did not have medical records to document that time period, the statements from his mother and aunt are compelling and consistent in their descriptions of confused and needing help walking. His headaches were so bad, he wasn’t sleeping, and he was very, very unsteady on his feet. d. He had worsening headaches and deficits upon returning from R&R in January 2011. Provider J____ H____ noted the applicant had a concussion on 25 January. Provider L____ G____ noted, the applicant’s activity instruction was documented as bedrest on 30 January 2011 (64 days post injury), indicating he would have needed assistance with any self-care at the time. On 4 February 2011, he was transferred to Landstuhl for further evaluation. He was transferred to an Army community hospital in Kentucky, on 8 February 2011, and it was noted he had an unsteady gait and was at a high risk of falling (73 days post injury). This was when his wife resumed responsibility for his care. e. On 16 February 2011, (81 days post injury), he had a TBI evaluation. His wife brought him to the appointment, as she would for many to come. Provider A____ G____ described his condition as very slow to reply and walks with a slow unsteady gait. When asked for his date of birth, the applicant had to refer to his ID card. f. On 7 March 2011, (100 days post injury), he had a speech/language pathology evaluation. His wife noted for the speech pathologist, that he would forget to eat, and his balance was way off. During the month of March, occupational therapy documented severely impaired levels of attention, and cognitive deficits impacting his daily function to the point where he was dependent upon his spouse for many activities. Symptoms were documented as headache, dizziness, insomnia, irritability, short-term memory loss, decreased focus and concentration, unbalance walking, word finding and ringing in the ears. g. On 14 April 2011, (138 days post injury), it was noted that his wife still had to assist him bathing. He had decreased balance in the shower when standing due to his dizzy spells. He would benefit from utilizing a shower chair/bench to increase his independence bathing. Clearly this was not a picture of a person who was independent in their ADLs at the time. h. The documentation from both his medical providers and family show a man who could not take care of himself independently. His balance and cognitive issues put him at high risk to fall, and to forget the proper steps involved in his normal ADLs. Based on the records, she supports the statement by RN Y____ B____ that the applicant needed * physical and stand-by assistance with transferring, bathing, and dressing until at least 14 April 2011 * stand-by assistance to remind him even to eat until at least 7 March 2011 28. An undated AHRC, Special Compensation Branch, TSGLI letter, shows: a. The U.S. Army TSGLI Certifying Office evaluated his claim for benefits under TSGLI. His claim for his event in Afghanistan on 27 November 2010, was previously approved for $25,000 for 15 days of TBI ADL losses. Other losses claimed were not approved. This letter explained why these losses were not approved, his right to appeal this decision, and the general requirements for TSGLI benefits. b. His claim for hospitalization was not approved because his loss did not meet the TSGLI medical standard. The medical documentation provided did not clearly reflect the applicant was an inpatient for 15 consecutive days. Regulations that govern the TSGLI program, hospitalization is defined as an inpatient hospital stay, which lasts 15 or more consecutive days in a hospital or series of hospitals, which include combat support hospitals, Air Force theater hospitals, and Navy hospital ships. The number of days includes transportation time from the site of the injury to the hospital, the day of admission and day discharge. c. His claim for other than TBI (OTI)/TBI ADL loss was not approved because his loss did not meet the TSGLI medical standard. Within the thousands of pages of documentation provided with the claim, a large majority of the documents were duplicates of each other, and did not indicate the applicant was rendered incapable of performing two or more ADLs for at least 30 (TBI) or 60 (OTI) consecutive days or greater. While the letters provided were taken into consideration, the documentation submitted continued to reiterate that while he did sustain a mild TBI, his cognitive deficits were related to and likely secondary to the acute stress caused by his PTSD. d. The regulations that govern the TSGLI Program, state that in order 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) e. The TSGLI regulations also state if the Soldier is able to perform the activity by the use of accommodating equipment/adaptive measures (such as a PDA, cane, crutches, wheelchair, etc.) then the Soldier is considered able to independently perform the activity. f. The applicant was advised of his right to appeal this decision within 1 year and to provide supporting evidence. His appeal must include why he disagrees with the determination, and any documents and/or evidence that supports the claim. 29. A letter from the Office of the Adjutant General, signed by The Adjutant General, Brigadier General R____ B____, dated 31 October 2017, show counsel was informed of the following: a. The Army Human Resources Command, Office of The Adjutant General (TAG) received the appeal request, and after reviewing the claim and supporting documentation, he was unable to overturn the previous adjudication concerning the losses associated with the ADLs from the traumatic event that occurred on 27 November 2010 in Afghanistan. b. Concerning the applicant’s ADL loss claims, the medical record did not show a 30 consecutive day period of TSGLI-specific, TBI-related basic ADL loss during the claimed loss period. The record did show he suffered persistent headaches, memory loss, and intermittent dizziness, however, the preponderance of evidence in the medical records did not show a consecutive 30-day period where the applicant required at least 2 of 6 TSGLI-specific basic ADLs per the TSGLI Procedural Guide, therefore, the TBI- related ADL loss claim did not qualify for payment at the 30-day milestone. 30. On 19 January 2021, the Army HRC Special Compensations Branch provided records consisting a case summary regarding the applicant’s claims for benefits under the TSGLI program. The records included the following documents: * TSGLI claim physician review, undated * HRC TSGLI letter denying benefits for hospitalization, and ADL loss due to TBI up to the 90-day threshold, dated 13 August 2015 * HRC TSGLI letter denying benefits for hospitalization, and ADL loss due to TBI up to the 90-day and 120-day thresholds, undated * Office of the Adjutant General (TAG) denying benefits at the 30-day threshold, dated 31 October 2017 31. Based on the applicant’s condition the ARBA medical staff provided a medical review for the Board members. See ?MEDICAL REVIEW? section. MEDICAL REVIEW: 1. The applicant through counsel, requests benefits through TSGLI compensation for required assistance for 90 day loss of at least 2 ADLs for assistance with dressing, toileting, eating, bathing, and transferring, due to the traumatic brain injury on 27 November 2010 sustained from the detonation of a suicide bomb. The Army Review Boards Agency Medical Advisor was asked to review this request. The ARBA review included but was not limited to the applicant's medical and military records; the applicant’s statement; his wife’s and aunt’s statements; nurse practitioners’ Medical Professional’s Statement; the counselor’s brief; and the TSGLI Procedural Guide. The records were thoroughly and carefully reviewed. It was noted that the applicant did receive the TSGLI benefit for 15 day loss. 2. The applicant contends that he was unable to perform the ADLs listed below for greater than 90 days due to TBI after an IED suicide bomb attack. He is claiming that assistance was needed for more than 6 months, as he contends that he was either unable to perform them on his own or was unable to perform them in a manner that was safe without such assistance from 27 November 2010 to 15 June 2011. a. Bathe independently. Required help into and out of the tub. Verbal reminders to groom/bathe. He needed physical (PA), standby (SBA) and verbal (VA) assistance. b. Dress independently. Required assistance choosing proper clothing and SBA to ensure completion of task. (Required SBA and VA.) c. Eat independently. Required verbal reminders to eat (VA). d. Toilet independently. Required assistance to get to/from the bathroom. Required SBA to ensure he didn’t fall. (Required PA and SBA.) e. Transfer independently. Required SBA to ensure he didn’t fall and VA for redirection to prevent him from getting lost. (Required PA, SBA and VA.) 3. The applicant sustained a TBI (27 November 2010) due to being in close proximity (20 meters or less) to a suicide bomber IED attack in Afghanistan. He was returned to duty same day, and served in a guard duty capacity that night. He was later evacuated to Bagram Air Force Base Hospital and received initial treatment for the TBI. He was eventually sent to Blanchfield Army Community Hospital where he remained in outpatient treatment approximately from 08 February 2011 to 20 November 2011. 4. According to objective measures, per Military Acute Concussion Exam scores on several different days from November 2010 to January 2011, the severity of the TBI was assessed to be mild and stable. Within 2 months of the injury (26 January 2011 Theatre note, day 61), he reported that he had been feeling dizzy at the gym since mid- December (approximately 16 December, day 20). Although he was burdened by dizziness with activities at the gym, being able to go to a gym by himself suggests the ability to be able to transfer into and out of a chair, dress himself, bath himself, toilet independently, as well as the ability to navigate from one room to another. 11 February 2011 Air Evacuation note showed Glasgow Coma Scale 15/15 (GCS is a measure a person's level of consciousness and the score was consistent with mild head injury). His functional status was assessed to be that he was independent with ADLs. At the Case Management intake visit (11 February 2011 Case Management note, day 77), it was noted that he lived in a two story house off post, and he was able to use public transportation but he was driving himself at that time. The applicant’s wife indicated she needed to remind him to eat, dress appropriately, bathe and aid in navigating the home environment. Despite the reports of subjective memory loss/issues, objective testing on (04 March 2011, day 98), showed “his working memory was within normal limits.” An individual with normal working memory, would not require reminders for eating, bathing, dressing, toileting independently, or for navigating a home environment. It was noted that at some point the applicant was no longer able to drive and needed his wife’s assistance. However, his functional level at that visit (08 March 2011 TBI Occupational Therapy, day 102) was assessed to be that he was dependent on his wife for instrumental ADLs. Instrumental ADLs are activities that enhance living and wellbeing but they are not considered necessary to live (in contrast to ADLs). Needing assistance with instrumental ADLs is not the TSGLI standard. During the 14 March and 15 March 2011 TBI Physical Therapy visits (day 108 and 109), the applicant had extensive testing for functional assessment of his balance issues. The applicant endorsed that he felt about 85 percent of his pre-injury self at the time. It was observed that on both days, he reported 0/5 on the dizziness scale. It should be noted that dizziness and balance issues may be related but are not the same. One of the specialized tests (Adaptation Test) showed that he had below age-matched normative data ability required for effective motor learning and safe community level functioning. However, his Motor Control Test (the automatic postural response related to the ability to quickly recover from an unexpected perturbation), was normal. Of special note, his fall risk was assessed to be “low”. During the 06 April 2011 (day 131) Occupational Therapy Tests, the applicant was assessed to not need any assistance with dressing, although it was noted that he was using self-adaptations for dressing his lower extremities. He reported decreased balance in the shower when standing due to dizzy spells; therefore a shower chair was recommended. During the 26 May 2011 (day 181) Occupational Therapy visit, the applicant reported that he no longer needed the shower chair. The 01 June 2011 Case Management note (day 187) indicated he was able to drive during the day with supervision, which suggests complete independence of all ADLs as well as a level of functioning that would suggest the acquisition of other instrumental ADLs. 5. Although the applicant consistently reported a headache since his TBI, the intensity of the headache was mild (reported as 2-3/10), and would not be expected to interfere with performance of ADLs. He also consistently reported dizziness, but it was intermittent and the severity varied. Once the balance problems developed, they were persistent but evidence does not support that they were severe enough; nor were they of the specific type that would consistently preclude the independent performance (with or without adaptive equipment) of dressing, bathing, toileting, and transferring activities, as based on objective measures. The applicant asserts that he was unable to perform at least 2 ADLs from 27 November 2010 to 15 June 2011, specifically he requests TSGLI benefit for inability to perform at least 2 ADLs for 90 days. The applicant’s personal statement; those of his wife and aunt were considered and accepted as factual that he received the assistance it was stated that they provided. However, the TSGLI standard is that the assistance must be required. Based on review of all available records, the objective medical evidence does not support that there were 90 consecutive days from 27 November 2010 to 15 June 2011 during which the applicant was unable to independently perform 2 ADLs with or without adaptive equipment. The applicant’s loss did not meet the minimum requirements for a loss of 2 ADLs under TSGLI standard for 90 days. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. Board members noted that the applicant contends that he was unable to perform at least 2 ADLs from 27 November 2010 to 15 June 2011, for 90 days. The Board considered his personal statement; those of his wife and aunt were considered and accepted as factual that he received the assistance it was stated that they provided. However, the TSGLI standard is that the assistance must be required. Based on review of all available records, Board members agreed with the medical advisory opinion that the objective medical evidence does not support that there were 90 consecutive days from 27 November 2010 to 15 June 2011 during which the applicant was unable to independently perform 2 ADLs with or without adaptive equipment. The applicant’s loss did not meet the minimum requirements for a loss of 2 ADLs under TSGLI standard for 90 days. 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. REFERENCES: 1. Title 10, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3-year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. 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) 3. 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. 4. 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. 5. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. Additionally, it states in paragraph 2-11 that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170019320 20 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1