ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 29 July 2019 DOCKET NUMBER: AR20180012771 COUNSEL REQUESTS: approval of the applicant's claim for Traumatic Servicemembers’ Group Life Insurance (TSGLI) based on a traumatic brain injury (TBI) resulting in losses of activities of daily living (ADL) for a period of 15 days, and a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * initial Application for TSGLI Benefits and appeals * U.S. Army Human Resources Command (HRC) TSGLI denial letters * applicant's medical records from Carl R. Darnall Army Medical Center, Fort Hood, TX * applicant's medical records from Landstuhl Regional Medical Center, Germany * U.S. District Court Memorandum of Opinion * U.S. District Court, Memorandum of Opinion and Order * U.S. District Court, Memorandum of Opinion and Order * U.S. District Court for the District o Opinion and Order Affirming, in Part, and Vacating, in Part, Agency Action (8 Plaintiffs v. USA) * U.S. District Court, Memorandum of Opinion * excerpt of 38 Code of Federal Regulations, section 9.20 (Traumatic Injury Protection) * TSGLI Procedural Guide FACTS: 1. The applicant defers to counsel. 2. Counsel states: a. Medical records, statements, and multiple favorable medical opinions have been submitted in support of the claim, but the claim and all appeals have been denied to date. The denials are in error, incorrect, wrongful, and against the weight of the evidence under the correct reading of the law and TSGLI Procedures Guide. Being such, he and the applicant respectfully request his military record be corrected to allow approval of his TSGLI claim for losses of activities of daily living for over 15 days, but less than 30 days due to a TBI. b. A close examination of the most recent decision letter does not show a complete assessment of the claimed standby assistance. The nature of the injuries, treatment, records, and statements show that some improvement did not alleviate the requirement of ADL assistance, especially standby assistance, until after 15 days. Here, statements, medical records, and medical opinions outweigh a few notes in the records that do not directly assess standby ADL limitations. Being such, it is requested benefits for 15 days of ADL losses due to a TBI be provided. c. It should also be noted that the TSGLI Application and Procedures Guide have minimal requirements for the ADL tasks that require assistance: he/she requires assistance from another person: (1) to bathe (including sponge bath) more than one part of the body or get in or out of the tub or shower; (2) to get and put on clothing, socks or shoes; (3)*** he/she requires assistance from another person with any of the following: going to and from the toilet, getting on and off the toilet, cleaning self after toileting, getting clothing off and on; (4) to move into or out of a bed or chair. See TSGLI Application and TSGLI Procedures Guide, emphasis added. 3. The applicant enlisted in the Regular Army on 22 July 2002. He served in Iraq from 6 March to 21 June 2004. 4. On 18 May 2005, a Physical Evaluation Board (PEB) found the applicant unfit for further military service based on a diagnosis of personality change with cognitive disorder, not otherwise specified, and headaches due to a TBI. The PEB recommended his placement on the Temporary Disability Retired List (TDRL). 5. The applicant's DD Form 214 shows he was placed on the TDRL on 24 June 2005. His records show he was removed from the TDRL and discharged with entitlement to severance pay. 6. The applicant, through counsel, submitted an application for TSGLI, dated 22 September 2015. The application states: a. On 21 June 2004, the applicant suffered multiple shrapnel wounds and a TBI after his motor pool was hit by mortar round blasts in Iraq. He was knocked unconscious and medically evacuated to the 31st Combat Support Hospital for emergency care. Surgery was performed to remove shrapnel from his left frontal head, left shoulder/bicep, left upper chest, and left buttock. He was transferred to Landstuhl, Germany. Once stable, he was air evacuated to Walter Reed and then finally to Darnall Army Medical Center, Fort Hood, TX. He was discharged on 30 June 2004 to the care of his first sergeant's wife, where he was given 24/7 supervision with another wounded Soldier for the next 5 days. He was given 30 days convalescent leave. b. He was unable to bathe independently. He required standby assistance (SBA) while showering to ensure he did not fall. c. He was unable to dress independently. He required verbal assistance to choose appropriate clothing due to TBI. SBA to ensure he did not fall when bending over. d. He was unable to toilet independently. He required SBA when going to/from toilet to ensure he did not fall. e. He was unable to transfer independently. He required SBA when transferring or ambulating to ensure he did not fall. f. From 21 June 2004 through at least 6 July 2004, the applicant required 24/7 supervision with SBA due to high risk of falls. Symptoms of weakness, imbalance, dizziness, lightheadedness, cognitive impairment, and memory loss due to TBI impaired his ability to follow through with ADL tasks and maintain safety. Without this assistance, he would not have been able to perform these ADLs independently or in a manner deemed safe. 7. The TSGLI application was signed by a medical professional who indicated she did not observe the patient’s loss, but reviewed his medical records. 8. On 18 May 2016, the HRC, Special Compensation Branch (TSGLI), denied the applicant's TSGLI claim. The denial letter provided the following explanation for the denial: a. Hospitalization: Your claim for hospitalization was not approved because your loss did not meet the TSGLI medical standard. Medical documentation provided with your claim indicates that you were admitted to the Green Zone 31st Combat Support Hospital in Iraq on 21 June 2004 and after several transfers, discharged from Darnall Army Community Hospital on 30 June 2004. Under the regulations that govern the TSGLI Program, hospitalization is defined as an inpatient hospital stay, which lasts for 15 or more consecutive days in a hospital or series of hospitals that is accredited as a hospital under the Hospital Accreditation Program of the Joint Commission on Accreditation of Healthcare Organizations. This includes 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 the day of discharge. b. Medical documentation provided does not indicate the member's loss met the TSGLI minimum standard. c. TBI-ADL Loss: Your claim for the inability to perform ADLs due to TBI was not approved because the medical documentation provided with your claim did not contain enough information to support that you could not perform ADLs independently. The documentation does not sufficiently cover the period of ADL loss claimed. Under the regulations that govern the TSGLI Program, evidence must demonstrate your inability to independently perform at least two of the six ADLs (eating, bathing, dressing, toileting, transferring, and continence). To approve your claim, we need evidence addressing the specific injury/injuries you sustained as a result of the traumatic event and providing a timeline of treatment up to the first 15 days of recovery. The timeline of treatment would consist of notations from licensed medical providers such as physicians, physician assistants, nurse practitioners, registered nurses, etc. Supporting documentation can also be submitted by other medical providers acting within the scope of their practice pertinent to the sustained injury/injuries, to include occupational/physical therapists, audiologists, or speech/language pathologists. d. There is insufficient information to support the medical professional's statement. 9. The letter also advised the applicant that he had the right to appeal the decision. If he elected to do so, he or his authorized representative must make the appeal in writing within one year of the date of the letter. 10. On 6 June 2016, the applicant's counsel submitted a request for reconsideration. As new and material evidence, a statement from the applicant was provided. The document states, in part: On 21 June 2004, I was seriously injured by a mortar round while in Iraq. I had shrapnel injuries all over my body including a traumatic brain injury. After I got back home from Landstuhl, I stayed at my first sergeant's home for five days. His wife was there to take care of me and another Soldier who was also injured. They also had their sons and a daughter there, too. My first sergeant was not there. He was still in Iraq. I had a skull fracture with a bleed on my brain. I felt like I couldn't even keep my balance. After all of this, I went to therapy to help my balance. I was dizzy, lightheaded and would get headaches. My memory was really really bad. l had to be reminded when to eat and bathe. I still do to this day. My wife is the one who does all of that now. If I had not had someone with me for at least the first 2 weeks after the explosion, I definitely could not have cared for myself. 11. The applicant's counsel also stated: In further review of this appeal, I would like the TSGLI office to consider binding court decisions on the TSGLI administrative process. One original lawsuit considered eight denied claims under the strict and deferential standard of "arbitrary and capricious." In this case, two claims were deemed to have been denied in an arbitrary and capricious manner, while the Army was given the benefit of the doubt on the remaining six claims under the favorable arbitrary and capricious standard. Also, more recently, in three other separate matters, the court also ruled in favor of claimants and against the Army in claims for TSGLI benefits - Blackwood v. United States of America, Carver v. United States of America, and Koffarnus v. United States of America - all referenced decisions are attached on the enclosed disk as "Exhibit C." "Please note that on the claims not overturned, the court did not disagree with the decisions, the court simply found the decisions were not made in an arbitrary and capricious manner." [The applicant's] appeal claim is stronger than most if not all the claims provided for the court decisions in the aforementioned cases. In [the applicant's] claim, the medical records indicate that he suffered an injury that would require assistance with his activities of daily living for over 15 days, however, the records are not directly explicit to this fact, especially after release from hospitalization. Therefore, the requirement for ADL assistance was provided in his declaration. 12. On 31 March 2017, the HRC, Special Compensation Branch (TSGLI), denied the request for reconsideration. The denial letter provides the following reasons for the denial: a. Your claim for the inability to perform ADLs due to traumatic injury (other than traumatic brain injury) was not approved because the medical documentation provided did not contain enough information to support that you could not perform ADLs independently. b. The documentation does not cover the time period of ADL loss claimed. The Army TSGLI office reviewed the letters provided by [the independent nurse reviewer] and [the applicant]; however no medical evidence was provided which demonstrated your inability to independently perform at least two of the six basic ADLs covered by TSGLI for 15 consecutive days or greater. 13. On 1 May 2017, the applicant's counsel submitted a second application for reconsideration. In a four-page letter counsel stated, in part, that in terms of the legal standard of review, it should be noted that TSGLI program benefits are administered by the Secretary of the Veterans Administration and 38 USC § 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." As explained in Yearwood v. United States, 2015 U.S. Dist. LEXIS 111538 (N.D. Ala. Aug. 24, 2015), this statutorily mandated benefit of the doubt "is of particular importance" in reviewing the denial of TSGLI program benefits. This is because 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. 14. On 20 August 2018, The U.S. Army Adjutant General inform the applicant's counsel that after reviewing the applicant's claim and supporting documentation, he was unable to overturn the previous adjudication concerning losses associated with TBI related ADLs from a traumatic event that occurred on 21 June 2004 in Iraq. The Adjutant General offered the following explanation for the denial: a. When determining ADL loss, Federal Regulation 38 CFR 9.20 states that a member "must suffer a scheduled loss that is a direct result of a traumatic injury and no other cause." It defines a traumatic injury as "physical damage to a living body that is caused by a traumatic event." It further states "the term inability to carry out activities of daily living means the inability to independently perform at least two of the six following functions: (A) Bathing, (B) Continence, (C) Dressing, (D) Eating, (E) Toileting, (F) Transferring in or out of a bed or chair with or without equipment." The TSGLI Procedural Guide further clarifies "if the patient is able to perform the activity by using accommodating equipment (such as a cane, walker, commode, etc.) or adaptive behavior, the patient is considered able to independently perform the activity." b. Concerning the applicant's ADL loss claim, you unfortunately presented very few medical documents from the claimed ADL loss period and did not present some of the medical records listed on Nurse Bums' timeline (21 June 2004 Casualty Report, 26 June 2004 Movement Record, 30 June 2004 Record of Inpatient Treatment, and 30 June 2004 Patient Release/ Discharge Instructions). However, the available medical record does not support the claim of TBI-related ADL loss at the 15 day milestone or beyond. The only significant medical note that was presented from the claimed ADL loss period was the Physical Therapy Note from 24 June 2004 (Day 4 after the traumatic event). This note states he was independent with transfers. Although it notes he was a fall risk and had some loss of balance with heel walking, it also records he had no loss of balance with toe walking and single leg standing. This along with the functional strength of the lower extremities demonstrates a level of balance that should allow independent transfers and ambulation. This is supported by the short term goal of independent walking without assistive devices within two days. The functional ranges of motion of all extremities, even with some weakness, should allow for dressing, bathing, and toileting in at least a modified independent manner per TSGLI guidelines. Thus, this note shows he was at least modified independent with his basic ADLs within the first week after the traumatic event. Furthermore, T.B.'s timeline references a 26 June 2004 (Day 6 after the traumatic event) Movement Record that states he was ambulating with a slow, steady gait. This further supports that he was independent with transfers and ambulation within the first week after the traumatic event. There is no information in the remaining available medical records to contradict this assessment. Therefore, his TBI-related ADL loss claim does not qualify for payment at the 15 day milestone or beyond. c. The applicant's statement was reviewed and considered for this adjudication. The statement he stayed with his first sergeant's wife is accepted without question. However, the fact that she provided ADL assistance is not the standard for TSGLI payment. The standard is that the ADL assistance must have been rendered because without such assistance he could not have performed ADLs in even a modified independent manner. The applicant presents that his lack of balance and memory issues required assistance with basic ADLs. As noted above, the 24 June 2004 Physical Therapy Note does document he had balance issues, however, these issues were not severe enough to prevent modified independent basic ADL performance. In addition, the fact he only stayed at the first sergeant's house for 5 days indicates his residual TBI symptoms were not that severe, otherwise he would have stayed longer. In addition, a person would usually want at least a day or two of demonstrated independence prior to releasing an injured person to live on their own. If one does not consider the day of his hospital discharge (30 June 2004) as first day of staying at the first sergeant's house and he only demonstrated one day of independence prior to leaving the first sergeant's house, the latest date he would begin demonstrating at least modified independence of basic ADLs would be 4 July 2004, which is Day 14 after the traumatic event. 15. The Adjutant General also informed the applicant's counsel the applicant had the right to apply to this Board if he disagreed with their decision and that he also had the right to appeal their decision in Federal district court. 16. On 6 February 2019, the Army Review Boards Agency Senior Medical Advisor provided an advisory opinion. The advisory found the medical records note a closed head injury due to blast and shrapnel. There is/are no major injuries to the hands, arms, shoulders, legs, or feet. There is minimal cognitive or intellectual impairment noted. The medical records note no difficulties with bathing, dressing, eating, continence, toileting, or transferring. A well-educated, cognitively normal, healthy adult with four functional limbs (with or without subjective balance problems and/or other mild post-concussive symptoms) should have no problem using either or both hands/arms to assist with bathing, dressing, toileting, and transferring. If the patient is able to perform the activity by using accommodating equipment, the patient is considered able to independently perform the activity without requiring assistance. In summary, the clinical history, pathophysiology of his injury, and medical record evidence does not support their contented loss of two or more ADLs for 15 or more days after TBI. A copy of the complete medical advisory was provided to the Board for their review and consideration. 17. The applicant was provided a copy of the advisory opinion on 8 February 2019 and given an opportunity to submit comments. The applicant's counsel responded and provided a 4-page brief stating, in part, the following: In the Advisory Opinion, assumptions are made about records not in existence or at issue. My office has made a thorough search for all medical records available for this traumatic event and all records available have been provided. Besides being an event that happened nearly 15 years ago, it is not uncommon for treatment in theatre to not be well documented. This fact should not be used against claimant. Similarly, the claimant cannot remember the name of his First Sergeant. This should not be used against [the applicant] in this appeal. It is requested that a decision based on all records available without assumption of unavailable records and unavailable information be provided. Also, the Advisory Opinion discusses irrelevant material, such as MEDBOARD proceedings and medical records not at issue. It misses the correct TSGLI ADL losses claimed and the correct TSGLI loss standards. The overall tone of the Advisory Opinion is dismissive, and the reviewer does not carefully weigh evidence in support of the claim. A presumption for denial is apparent throughout the Advisory Opinion. In the Advisory Opinion, the severity of the TBI injury and resulting limitations are not properly considered. Also, the claim for ADL losses only involves standby assistance. These specific losses are not adequately assessed. In fact, the reviewer selectively chooses portions of records to discredit the claim, including records well before and well after the 15 days at issue. Then, instead of properly weighing the evidence, the reviewer focuses on the applicability of adaptive devices that were not issued and records that are not available. Ultimately, the reviewer questions this combat veteran's honesty and finds that the assistance was "nice" but not required. Further, the Advisory Opinion focuses on [the applicant's] being ambulatory with a cane and/or another adaptive device. However, being ambulatory does not directly speak to the claimed standby assistance for transferring under the TSGLI standards, which involves "assistance from another person to move into OR out of a bed OR chair". The ADL of transferring is clearly different than ambulation. BOARD DISCUSSION: After review of the application and all evidence, the Board determined there is insufficient evidence to grant relief. 1. The ABCMR applies a preponderance of evidence standard to its factual determinations and is not bound by the VA’s benefit of the doubt rule. The applicant carries the burden of proof and the burden of persuasion. In this regard, an applicant must meet some minimal level of verification. a. In this case, the applicant states that after being discharged from Darnell Army Hospital at Fort Hood, TX, he stayed at his First Sergeant’s home where the First Sergeant’s wife provided hands-on attentive care, presumably to include bathing and toileting activities. This scenario strikes the Board as unusual. While the Board can envision a First Sergeant’s spouse providing a recently redeployed Soldier a room in which to stay for a few days while the Soldier re-acclimates himself to the garrison lifestyle, it is more difficult to envision the spouse of a senior NCO dedicating the time and attentiveness necessary to provide the intensity of care contemplated by the TSGLI ADL loss standards. Compounding this unusual situation is that this scenario is uncorroborated in any way by the First Sergeant, the First Sergeant’s spouse, or any other witness. b. Also unusual is that the applicant is unable to recall his First Sergeant’s name. A company First Sergeant in the Army enjoys a position of stature and authority for his/her enlisted Soldiers, and it seems likely that the applicant should remember the name of his first sergeant who went above and beyond normal duty requirements in that the applicant’s First Sergeant allegedly opened his home and offered post-operative care, yet, even accounting for his TBI injury, the applicant is unable to remember his First Sergeant’s name or, after investigation by him and his counsel, is unable to discover his First Sergeant’s name. c. Additionally, the applicant’s own statement of the care he received at the First Sergeant’s home lacks any specificity regarding how the First Sergeant’s wife cared for him and any specificity regarding the ADLs with which she assisted him. Consequently, the applicant and his counsel have not been able to provide even minimal verification of the help he obtained just after he was discharged from the hospital at Fort Hood. d. The lack of verification goes to the very essence of the ADL loss inquiry because the applicant must show that he received fairly intensive assistance during the final days of the relevant 15-day time period. 2. Because of this inadequate verification, the Board unfortunately must deny the applicant’s application. If the applicant seeks reconsideration of his application, his case would be bolstered by providing some corroborative verification of the care he received from the First Sergeant’s spouse. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :x :x :x DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The evidence presented does not demonstrate the existence of a probable error or injustice. Therefore, the Board determined the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. 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, coma from traumatic injury and/or traumatic brain injury (TBI) resulting in inability to perform at least two ADLs, hospitalization due to TBI, and genitourinary losses. 4. Part II losses include traumatic injuries, other than TBI, resulting in the inability to perform at least two ADL, which are dressing, bathing, toileting, eating, continence, and transferring, for 30 or more consecutive days and hospitalization due to a traumatic injury other than TBI. TSGLI claims may be filed for loss of ADL if the claimant requires assistance from another person to perform two of the six ADL for 30 days or more. ADL loss must be certified by a healthcare provider in Part B of the claim form and ADL loss must be substantiated by appropriate documentation, such as occupational/physical therapy reports, patient discharge summaries, or other pertinent documents demonstrating the injury type and duration of ADL loss. 5. Appendix B (Glossary of Terms) of the TSGLI Procedures Guide, dated September 2008, provides the following definitions: a. Traumatic Event: The application of external force, violence, chemical, biological, or radiological weapons, accidental ingestion of a contaminated substance, or exposure to the elements that causes damage to a living body. Examples include: * military motor vehicle accident * military aircraft accident * civilian motorcycle accident * rocket propelled grenade attack * improvised explosive device attack * civilian motor vehicle accident * civilian aircraft accident * small arms attack * 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. ABCMR Record of Proceedings (cont) AR20180012771 11 1