ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 10 March 2020 DOCKET NUMBER: AR20180016531 APPLICANT REQUESTS: through Counsel, correction of his military records to show his entitlement to supplemental payments totaling an additional $50,000.00 Traumatic Servicemembers' Group Life Insurance (TSGLI) for losses of Activities of Daily Living (ADL) from 60 – 120 days after the traumatic event. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Applicant-Attorney Power of Attorney, dated 14 July 2016 * Memorandum for U.S. Army Human Resources Command (AHRC), Special Compensation Branch (TSGLI), dated 21 July 2013 * Letter, Prudential SGLI, dated 20 August 2013 * Military Medical Records (Occupational Therapy, Physical Therapy, Physician Reports, Hospital Discharge Records and Patient Movement Records) * SGLV Form 8600 (Application for TSGLI Benefits), dated 12 April 2015 * Memorandum, AHRC, Special Compensation Branch (TSGLI), dated 1 August 2016 * Medical Opinion, Independent Nurse Reviewer, dated 12 September 2016 * Letter, Law Offices of , dated 13 September 2016 to AHRC * SGLV Form 8600, 14 July 2016 * Applicant Injury and Chronological History of Medical Treatment * Applicant Declaration Statement in Support of TSGLI Claim, dated 12 September 2016 * Applicant Spouse’s Declaration Statement in Support of TSGLI Claim, dated 12 September 2016 * Letter, AHRC, Special Compensation Branch (TSGLI), dated 28 September 2016 * Medical Opinion, Independent Nurse Reviewer, dated 9 October 2016 * Letter, Law Offices of , dated 10 October 2016 * Letter, Law Offices of , dated 30 June 2017 * SGLV Form 8600, dated 3 July 2017 * Letter, AHRC, Office of the Adjutant General, dated 2 October 2018 * U.S. District Court, Western District of Division, v. USA, Memorandum Opinion and Order * U.S. District Court, Western District of Division, v. USA Memorandum Opinion and Order * U.S. District Court, Western District of v. USA Memorandum Opinion * U.S. District Court for the District of v. USA Opinion and Order Affirming, in Part, and Vacating, in Part, Agency Action * Title 38, Code of Federal Regulations, section 9.20 * TSGLI Procedural Guide FACTS: 1. Counsel stated the (AHRC, Special Compensation Branch) TSGLI office has discounted or ignored favorable evidence supporting the claimed ADL losses. Rather than review and render a decision on the totality of the evidence, only selected portions of statements and records that allow an unjust denial have been mentioned in decisions from AHRC, Special Compensation Branch. The evidence of the impact his nonweightbearing status and the complications of infection (of his lower left extremity) with the applicant’s poor recovery were not properly considered. The TSGLI guidance has minimal requirements for the ADL tasks requiring assistance: a. A patient is unable to bathe independently if he/she requires physical, stand-by, or verbal assistance from another person to bathe more than one part of the body (via a tub bath or sponge bath) or get in or out of the tub or shower. b. A patient is unable to maintain continence independently by managing a catheter or colostomy bag. The patient is also unable to maintain continence independently if she/he is partially or totally unable to control bowel or bladder function. c. A patient is unable to dress independently to get in and out of the appropriate clothing (i.e. dress for the correct season), socks or shoes (may have help tying shoe laces). d. A patient is unable to eat independently to get food from a plate to the mouth, or take liquids nourishment from a straw or cup. The patient is also unable to eat independently if he/she is fed intravenously or by a feeding tube. e. A patient is unable to toilet independently to go to and from the toilet, get on and off the toilet, clean self after toileting, or getting clothing off and on before and after toileting. f. A patient is unable to transfer independently to move into or out of a bed or chair. 2. The 2 October 2018 letter denying TSGLI benefits looks for evidence of "definitive proof" in statements to prove ADL losses, which is clearly erroneous. Counsel has discussed the "correct legal standard" in earlier appeals (to AHRC, Special Compensation Branch (TSGLI). 3. The applicant enlisted in the Regular Army on 21 September 2010. 4. The applicant deployed to Afghanistan in support of Operation Enduing Freedom on or about 6 December 2011. 5. On 19 March 2012, while on rest and recuperation leave from Afghanistan, the applicant was hit by a motor vehicle while assisting a stranded motorist. He injured his left tibia, a grade 3 open left tibia fracture and fibula. He underwent irrigation and debridement followed by medullary nail placement surgery. 6. On 17 April 2013 the applicant completed SGLV Form 8600 wherein he requested payment of TSGLI for a compound fracture of the tibia and fibula in multiple places. (He provided his TSGLI application as evidence to support his application.) He stated an infection grew on the tibia nail which resulted in five major surgeries to avoid amputation. His traumatic injury occurred on 19 March 2012 east of Midland, Texas. He was hospitalized on 19 March 2012. He was first hospitalized at a medical center hospital in Texas and then at a military hospital in Alaska. The reason for his hospitalization was other traumatic injury, salvage of left leg (limb salvage). His orthopedic surgeon certified the applicant’s injury on 17 April 2013. The surgeon stated, "[The applicant suffered a complex tibia fracture that developed into an infected nonunion. He required multiple surgical procedures and intensive physical therapy. Throughout this period of treatment, he had been limited in mobility and weight bearing. He has had to utilize assistive devices. This has significantly limited his ability to perform ADLs." The dates he was not able to perform his ADLs was from 20 March 2012 to 1 October 2013, unless otherwise noted: * ADL – unable to bathe independently because he could not submerge his wounds (leg) in water and he was nonweight bearing; he required hands on and stand by assistance from an individual * ADL – unable to dress independently due to limited knee and ankle range of motion plus he was nonweight bearing; he required hands on assistance and standby assistance from an individual * ADL – unable to toilet independently from 20 March to 10 December 2012; he required hands on assistance and standby assistance because he had difficulty sitting and standing * ADL – unable to transfer independently also from 20 March to 10 December 2012; he required hands on physical assistance and standby assistance because he had limited range of motion in his knee and ankle and he was nonweight bearing 7. On 18 June 2013, the VA provided the Department of the Army with its preliminary proposed rating under the Integrated Disability Evaluation System. The VA proposed disabilities were identified with a physical evaluation board referred combined evaluation of 50 percent. 8. On 21 June 2013 the AHRC, Special Actions Branch (TSGLI) sent the applicant a letter providing him with a checklist of additional evidence that was required to process his application. He was required to provide occupational therapy notes, physical therapy notes, physician notes, and hospital discharge documents including patient movement records from his date of injury throughout his treatment for the period claimed. 9. On 26 June 2013, an informal physical evaluation board met and determined the applicant was physically unfit recommending a 50 percent combined rating with permanent disability retirement. His case was adjudicated as part of the Integrated Disability Evaluation System. His unfitting disabilities were – * left leg pain from compound tibia and fibula fracture with subsequent infection and multiple surgeries with hardware fixation and left ankle strain * neurological sequelae of compound tibia and fibula with multiple surgeries involving multiple nerves * chronic left knee strain status post compound tibia and fibula fracture with multiple surgeries 10. On 23 July 2013, the applicant sent AHRC an email stating, in effect, during the period from 19 March to 19 April 2012 he was able to provide hospital discharge documents, but could not provide physical therapy or occupational therapy records because he did not receive treatment. He started physical therapy in November 2012 and states he previously submitted that evidence of his treatment. He included a copy of the requested records showing he underwent physical and occupational therapy in Alaska: * on 21 March 2012, a telephonic consult is entered in his medical record showing he notified his rear detachment medical treatment facility (MTF) that he was the victim of in a motor vehicle accident and the extent of the injury to this left leg; his command in Afghanistan was notified too; rear detachment notified it had the authority to place applicant on convalescent leave based on Texas physician’s recommendation of 6 weeks with no travel to his duty post * on 23 March 2012, he was discharged from the Texas hospital with notes he was allowed to shower, be up as tolerated and had the ability to do touch-toe weightbearing exercises * on 2 May 2012, he had his first medical appointment at his post MTF – Orthopedic Clinic where it was noted his left leg skin was warm with mild erythema and slight increased warmth near anterior open wound with a slight serosanguineous drainage from open wound; he was ambulating in a walking boot with crutches with his left ankle showing weakness while his knee showed full range of motion * on 10 May 2012, Orthopedic Clinic notes he was ambulating but had stiffness from immobilization and injury with difficulty of the dorsiflexion of his left foot, extension of toes and extension of hallices longus beyond neutral position; it was noted there was a concern of infection near the fracture site and hardware so a deep wound culture was obtained; antibiotics were started; scheduled for physical therapy to work on range of motion of left knee and ankle; and he was given 30 days of convalescent leave and a 90 day physical profile * on 14 May 2012 (day 3 of ADL loss period), he was ambulating in a walking boot with crutches and was accompanied by his wife; medication Percocet; his range of motion on his left leg was limited due to stiffness from immobilization and injury, but he could initiate movement in all directions; still has difficulty moving his left ankle and toes; and discussed possible irrigation and wound debridement with continued management of wound infection with possibility of hardware removal once fracture heals * on 15 May 2012, he had lower irrigation and wound debridement (surgery) with placement of a wound vacuum assisted closure (VAC) (negative pressure wound therapy) * on 18 May 2012, he was seen in the Wound Care Clinic for follow-up post- surgery for a surgical dressing change; and he was released without limitations but directed to return in 2 days * on 21 May, 24 May, 26 May and 28 May 2012 he received follow-up care at the Wound Care Clinic where the surgical dressings were removed, the wound cleansed and new surgical dressing applied; and he was released without limitations and told to follow-up in 2 days * on 30 May 2012, he was seen in the Orthopedic Clinic for post-surgical follow-up after being consistently treated in the Wound Care Clinic directly following surgery; his lower left leg had limited range of motion with limited extension, flexion and extensor halluces longus; his wound was responding well to the wound VAC; follow-up in Wound Care Clinic; discussed possible skin graft surgery; and he requested Exogen bone growth stimulator for left tibia due to delayed union with infection; * on 31 May and 4 June 2012, he received wound care treatment as prescribed by his orthopedic surgeon * on 6 June 2012, he was seen in the Orthopedic Clinic for follow-up and was released with work/duty limitations (he was still on convalescent leave) the wound and wound VAC were cleaned and the wound VAC remained in place; he had marked stiffness of his left ankle; and the doctor’s plan included skin grafting surgery for early wound definitive closure * on 11 June 2012, he received wound care treatment and the wound VAC was removed * on 13 June 2012, he was seen in the Orthopedic Clinic and he still had the bone growth stimulator; his surgeon was still recommending a split thickness skin graft to his left calf; and he was released with work/duty limitations * on 18 June 2012, he received follow-up care at the Wound Care Clinic where a psychical examination revealed a healing wound to the left lower anterior leg; plan was to apply silver nitrate to hypergranulation tissue during wound dressing change; he was given medical supplies and directed to change his own bandages (emphasis added) every other day or as needed based on wound drainage * on 20 June 2012, he was seen in the Orthopedic Clinic with the plan to perform left leg split thickness skin graft for a residual open wound on the medial calf; the doctor noted he discussed at length with the applicant his left leg injury and potential plans; he was released with work/duty limitations * on 22 June 2012, he underwent surgery for left leg split thickness graft to medial calf soft tissue defect; he was released with work/duty limitations * on 3 July 2012, he was seen in the Orthopedic Clinic for follow-up treatment post skin graft surgery with the post-operative dressing removed from left lateral thigh donor site and suture and bolster dressing removed from the graft recipient site; the graft site appeared to be a 100 percent take with no evidence of eschar/tissue maceration; medications included Percocet and antibiotics; new consult for crutches was placed; continue with bone stimulator; he had residual edema in his lower left extremity; and was told to follow-up in 4 weeks * on 14 August 2012, he was seen in the Orthopedic Clinic for follow-up from post skin graft surgery (he was 5 months post traumatic event – accident); he has been nonweightbearing of his left lower extremity in a cast boot for immobilization; he continues with the Exogen bone growth stimulator; he was able to fully extended his left knee and flex to 135 degrees; his wounds were healing; there was discussion among the medical staff and the applicant concerning a possible staged reconstruction of his left leg; there were concerns of residual infection and a lack of bony contact at the fracture site meaning he requires a revision of his fracture with open wound debridement of the fracture site, and removal of the nail and reconstruction with exchange nail, external fixator, or other possible alternative * on 5 September 2012, the orthopedic surgeon states the applicant underwent multiple debridement surgeries; the left lower leg showed well-healed surgical incision with evidence of skin grafting and scar formation along the medial aspect of where his wound was; radiology showed stable implant alignment with proximal tibia shaft fracture with no evidence of healing; the assessment remained infected left tibia nonunion; after consultation with shock trauma specialists, it was decided he would undergo a 2-stage procedure for treatment on his nonunion; surgery was planned for 6 September 2012 with debridement of his fracture site with removal of all nonviable bone; and exchange of his tibial nail for an antibiotic cement nail * on 18 September 2012, he was seen following a left tibia intramedullary nail removal with placement of antibiotic nail and tibial infected nonunion debridement; he was provided with a hinged knee brace which was to provide stability of his fracture site; he will maintain nonweightbearing status; and he was to return in 2 weeks for a preoperative meeting for bone grafting and placement of a tibial nail scheduled for 15 October 2012 * on 2 October 2012, he was seen in the Orthopedic Clinic with a suspected left tibia nonunion which was initially treated with nail removal and placement of an antibiotic cement nail with intravenous antibiotics; another surgery was discussed for placement of an intramedullary nail with bone grafting from his femoral canal * 15 October 2012 date of surgery * on 25 October 2012, he was seen in the Orthopedic Clinic for initial post- operative visit following a left tibial exchange nail with removal of antibiotic cement spacer with placement of a permanent implant; he also had bone grafting of the infected nonunion site with femoral canal reaming; there was no mobility of the fracture site; plan was to do lower extremity strengthening; and he was non- weightbearing; he should continue using the bone stimulator; and he was still prescribed Percocet for pain management which he took daily * on 8 November 2012, he was seen on the Orthopedic Clinic for follow-up care post 15 October 2012 surgery wherein the bone grafting followed a septic non- union of the left tibia; he was provided with a consultation for physical therapy to work on range of motion and strengthening; he could continue with toe touch weightbearing of his left leg; and he was told to return in 3 to 4 weeks for follow up medical care * on 30 November 2012, an orthopedic surgeon noted he was gradually improving his overall activity levels; left leg well-healed surgical incisions, without drainage or erythema; minimal tenderness with ability to move his toes and ankle; he was allowed to start physical therapy; he still was prescribed Percocet taking two to three pills a day; and he would transition to the installation Warrior Transition Unit 11. On 20 August 2013, the Office of Servicemembers Group Life Insurance sent the applicant a letter informing him his Service had not approved his secondary claim for TSGLI. He filed a claim for limb salvage which did not meet the loss standard of the TSGLI. The TSGLI standard for limb salvage is defined as a series of operations designed to avoid amputation of a leg or arm while maximizing the limb’s functionality. The surgeries typically involve bone and skin grafts, bone resection, reconstructive and plastic surgeries often occurring over a period of months or years. A surgeon must certify a surgery was specifically for limb salvage. Additionally, his claim for hospitalization was disapproved because he was not hospitalized for 15 consecutive days and his request for loss of ADLs for at least 30 consecutive days was denied. He was advised of his right to appeal to his branch of Service. 12. Orders were published showing the applicant was to be permanently medically retired effective 29 September 2013 with placement on the retirement list effective 30 September 2013. Orders 197-0172 show his percentage of disability was 50 percent. He was retired in his present grade of specialist/pay grade E-4. Accordingly, he was issued a DD Form 214 showing he was permanently retired due to disability on 29 September 2013. He was separated under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4. 13. On 28 September 2016 upon appeal the AHRC Special Compensation Branch (TSGLI) approved the applicant’s claim for limb salvage of his left leg in the amount of $25,000. His other losses were not approved, specifically ADLs up to 120 days. The guidance in the letter stated his ADL loss could not be combined with other approved losses. The TSGLI guidance states payments for losses listed in Part II of the TSGLI Standard of Losses cannot be combined with payments for losses listed in Part I of the TSGLI Schedule of Losses. Only the loss with the higher payment amount may be paid. Additionally, the evidence provided by the applicant did not support ADLs loss as defined in the guidance. He was advised he had the right to appeal to AHRC. 14. On 9 October 2016, counsel sought the assistance of an independent nurse reviewer who reviewed the applicant’s TSGLI claim. The nurse restated the applicant’s injury history. She stated he was injured on 19 March 2012 and entered the hospital. He was discharged on 23 March 2012. He had undergone surgery to repair his compound fracture of his tibia and fibula. Upon his discharge, he was entrusted to the care of his spouse with instructions to keep his wound dry with limited weightbearing on his left foot. a. On his return trip to Alaska (his permanent duty station) he became ill and sought medical treatment at his duty station. On 10 May 2012 he was diagnosed with an infected open wound at the surgical site. He was started on antibiotics. He was also issued 30 days of convalescent leave and a 90 day profile. He was barely able to ambulate with a walking boot due to his limited range of motion and he could not have weight on his left leg so he relied on a wheel chair for mobility. For bathing, he required direct assistance from his spouse who assisted him during the process of bathing. The applicant’s recovery period was lengthened due to his serious infections and multiple surgeries to address the infections. b. On 14 May 2012, he underwent another surgery which was 56 days post injury. His left leg was irrigated and debrided with placement of a wound VAC. At 72 days post injury he returned to the orthopedic clinic and was directed to start treatment with an Exogen bone growth stimulator. He was nonweightbearing and his range of motion was restricted. c. At day 86 post injury, the wound VAC was removed. On 22 June 2012 he underwent skin graft surgery (with a donor site from another point on his leg). On day 106 post injury, he was reinstructed to be nonweightbearing. d. On 14 August 2012 (148 days post-injury) it was discussed that bone reconstruction surgery might be necessary. At this time his leg was placed in a cast boot for immobilization. By 6 September 2012, he underwent another surgery where an antibiotic nail was inserted into his leg. At this point it was day 171 post injury. He had other surgeries and then a medical evaluation board was initiated one year after the date of his injury. e. Concerning ADLs, his medical records lack specificity describing his ADL limitations. She then cites v. United States of America as a court case that supports awarding the applicant an additional 60 days of TSGLI benefits. [In Koffarnus v. United States of America the plaintiff, an Army National Guard Soldier, was shot in the foot and underwent surgery for her wound. She was denied TSGLI for 45 days of loss of three ADLs. The Army Board of Correction of Military Records (ABCMR) also denied her application. Upon appeal to the United States District Court Western District of Kentucky at Louisville, the court denied the defendant summary judgement and returned it to the ABCMR granting the plaintiff summary judgment sua sponte and vacating the previous ABCMR decision. In turn, the ABCMR reviewed the plaintiff’s application and again denied it in 2016. The Deputy Assistant Secretary of the Army (DASA) Review Boards (RB) upon review granted the applicant relief of loss of three ADLs for 30 days or more.] 15. On 14 June 2017, the AHRC Special Compensation Branch (TSGLI) reevaluated his claim. This letter states his claim for TSGLI was previously approved for $50,000 for limb salvage of the left leg. All other losses claimed were denied. He was advised by the letter as to why his request for TSGLI for loss of ADLs was denied. Again, because he incurred a loss (Part I TSGLI Schedule of Losses) it could not be combined with Part II of the TSGLI Schedule of Losses. The letter further states: The letters provided with your claim were taken into consideration and the medical documentation does indicate you had a prolonged recovery period due to infections in your leg; however, the medical documentation provided with your claim does not provide any evidence that indicates you were rendered incapable of performing two or more ADLs for at least 90 days or greater. While the records do show that you were nonweightbearing on the left lower extremity, they also state that you were provided with a cast boot and crutches for ambulation. 16. The applicant with counsel again appealed to AHRC Special Compensation Branch (TSGLI) on 30 June 2017. This claim was for other traumatic injury leading to a loss of ADLs for 60 to 120 days. Counsel acknowledges the applicant was awarded $50,000 for limb salvage surgeries. He concurs it is the proper amount under the TSGLI Guidelines and Schedule of Losses. He further agrees that the provided amount pursuant to a 28 September 2016 decision covers ADL losses for 0 to 60 days and limb salvage. Counsel asked for a review of all submitted evidence with previous applications and new evidence submitted with this appeal. a. Counsel notes the TSGLI program benefits are administered by the Secretary of Veterans Affairs under the provisions of Title 38, U.S. Code, section 5107(b). He opines the standards applicable in this case is of "substantial evidence" which he states means: "[w]hen there is an approximate balance of positive and negative evidence regarding any issue of material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant." He identifies applicable case law Koffarnus v. United States in support of his opinion. b. He then sites Yearwood v. United States wherein the statute (Title 38, U.S. Code, section 5107(b) is of particular importance when reviewing TSGLI claims. In this sited case, the required benefit of doubt alters the standard of proof that the claimant (applicant) must meet a substantial evidence standard. Because the claimant is entitled to the 'benefit of the doubt' whenever the evidence is in equipoise, § 5107(e) clearly does not require the claimant to prove his claim by a preponderance of the evidence. Applying a preponderance of evidence burden to the claimant renders § 5107(b) meaningless. Requiring the claimant to prove his claim 'to be more likely true than not true,' contradicts the careful balance established in § 5107(b), under which all matters on which the evidence is in 'approximate balance' goes to the claimant. The burden of proof established by § 5107 requires the claimant to make an initial presentation of his claim and support it with substantial evidence, something more than a mere scintilla but less than a preponderance. Once the claimant meets this substantial evidence burden, he is entitled to the benefit of the doubt as to every matter on which the evidence is in 'approximate balance.' Yearwood at *26. c. The consequence of the Yearwood v. United States decision opines counsel is a shift in the burden from the plaintiff (applicant) to the administrators of the TSGLI Benefits Program. Counsel then explains Westlaw’s treatise on Federal Procedure which counsel believes assists in the applicant’s application for TSGLI benefits. He further states to the AHRC Special Compensation Branch (TSGLI) offices that they should consider the binding court decisions on the TSGLI administrative process. He then sites three court cases where the court ruled in favor of the three claimants and against the U.S. Army concerning ADL claims. See Blackwood v. United States of America, Carver v. United States of America and Koffarnus v. United States of America. He provides these court decisions for the Board’s review. d. He opines that the applicant’s spouse statement should be enough to grant the applicant full TSGLI benefit because "per judicial order, these statements must be given proper consideration." e. A new SGLV 8600 was completed and submitted with counsel’s letter to AHRC. The applicant and his spouse included affidavits with the 2017 TSGLI application for ADL loss from day 61 to 120 days post injury date. (1) The applicant restates he was injured on 19 March 2012 when he was hit by a car while trying to help a third party. He suffered a compound fracture to his left tibia and fibula. He had multiple surgeries and when he was released from the hospital he states it was terrible. He incurred an infection that never healed causing him pain and aches in his left leg. He states he could feel the hardware in his leg and at times when the infection was bad it felt like he had the flu and could not move. He relied on a wheelchair most of the time because it was so difficult to move on the crutches due to the pain. He states, "My wife had to help me with everything. And, my wife had to quit two jobs at the time to take care of me." After one surgery where an antibiotic rod was inserted into his leg he could only move his leg like a pencil, keeping it straight. He did not have stability in his leg. After a time, he was able to use a cane but that was 8 to 9 months after his initial surgery. During this period they lived in a duplex with the bedrooms downstairs and the main living area upstairs including the kitchen. He could not navigate the stairs without direct assistance from his spouse. She brought him his food. For bathing, his wife would set the bathroom up for him because he had to take baths. He could not get his leg wet. She provided him direct hands-on assistance by helping him get in and out of the bathtub. He states he could physically dress himself after bathing; however, his spouse was always on standby especially during the very painful periods after his multiple surgeries. Eventually he was medically retired from the Army because of his injury and its many surgeries. He just could not do his military job. (2) The applicant’s spouse provides a statement attesting to the fact she assisted her husband with his ADLs. She restates his date of injury and type of injury. By May 2012, they returned to his permanent duty station in Alaska. During the trip back to Alaska, he used crutches to walk and he became very ill with high fevers. On 12 May 2012 he had surgery and following it he could not put any weight on it. He also had a wound VAC devise on his leg. He had it for a long time. For bathing, she would wrap his wounded leg in plastic wrap and physically help him in and out of the bathtub. He would bath himself because he wanted to be alone. However, she was on stand-by because if he needed anything she was there to directly help him to include holding his leg. At times she would be in the bedroom adjacent to the bathroom, but he would yell for her and she was quickly there to assist him. For dressing, she would assist him with putting his clothes out for him to put on. He could dress himself but she was there to directly help him. For walking and managing the stairs, she was directly with him making sure he did not fall. She restates the bedrooms were downstairs and the main living area was upstairs. He also needed help getting in and out of the car. He did use a wheelchair which she says she helped him with it because his crutches were too painful for him. She concludes by stating for an extended period her husband could not care for himself without her direct assistance and involvement. 17. On 2 October 2018 the final approval authority, The Adjutant General denied the applicant’s appeal request for loss of ADLs from day 61 to 120 days post injury. This letter confirms the applicant was paid $50,000 for limb salvage of the left leg. By Federal Regulation 38 Code of Federal Regulations 9.20 an ADL loss cannot be combined with limb salvage. If both of these two claims were awarded, only the claim with the highest benefit would be paid. With his payment of $50,000 for limb salvage, the next ADL threshold for payment is at the 90 day milestone. The letter then outlines why he does not meet the TSGLI standards for 90 days loss of ADLs by outlining his treatment diary including the fact he had fully functioning arms, back, neck, both hips, and right leg. His functional range of motion for his left knee was from zero to 130 degrees during the period he was requesting ADL loss. The Adjutant General acknowledged the applicant and his wife’s statements were reviewed and considered during the adjudication process and his wife’s statement was accepted without question meaning she did provide him ADL assistance. However, providing assistance alone does not qualify or meet the standard for awarding the benefit. The standard is ADL assistance must have been rendered because without such assistance he could not perform his own ADLs even in a modified independent manner. The applicant described his wife’s assistance as standing by and being there for him. The standard is the assisting individual must be within arm’s reach of him. Again, he was advised of his appeal rights which included appealing to this Board. 18. On 22 May 2019, the Army Review Boards Agency (ARBA) senior medical advisor, a medical doctor, provided an advisory opinion as required by law. The medical doctor restated the applicant’s military history then he goes in depth describing the medical treatment the applicant received as noted previously within this record of proceedings based on evidence provided by the applicant and his counsel. Concerning his military history, the advisor confirms the applicant did not meet the physical retention standards to remain in the U.S. Army; therefore, he went before a medical evaluation board which referred him to a physical evaluation board. The physical evaluation board found him unfit recommending his retirement with a 50 percent combined rating with permanent physical disability based on limb salvage and its associated complications from a traumatic injury he incurred on 19 March 2012. 19. The medical advisor addresses the applicant’s TSGLI appeal acknowledging and confirming the applicant received TSGLI benefits totaling $50,000 for limb salvage procedures due to his traumatic injury of 19 March 2012. He restates the applicant and counsel’s request to award the applicant an additional $50,000 of TSGLI benefits based on loss of two or more ADLs (61 to 120 days or more post traumatic event). After reviewing all the evidence (medical history, mechanism and location of injury) and acknowledging the applicant’s case lacks physical and occupational therapy medical records from date of injury (19 March 2012) through his return to control of military medical authorities on or about 12 May 2010, the advisor concludes by saying the applicant was capable of performing all six ADLs because he had the use to two hands, both arms, shoulders, right leg and his feet to perform the ADLs and had use of assisted devices (crutches, boot, leg brace, etc.) He further states the applicant was not able to perform one or two ADLs the 30 days following his injury. (He received TSGLI benefits for limb salvage during this period.) The advisory concluded by recommending the Board deny the applicant’s claim for loss of more than two ADLs for the period 60 to 120 days post injury. A copy of the complete medical advisory was provided to the Board for their review and consideration. 20. The medical advisor also reviewed the applicant’s VA records through the Joint Legacy Viewer. The applicant is 100 percent service-connected disabled for loss of leg (middle/lower) at 80 percent, somatization disorder at 30 percent, bursitis at 10 percent and limited flexion of knee at 10 percent and degenerative arthritis of the spine at 10 percent. In 2016, the applicant underwent surgery to amputate his left lower leg above the knee (transfemoral amputation). 21. A copy of the medical advisory was provided to the applicant and his counselor. On 12 June 2019, counsel responded stating: a. The advisory provides a detailed review of irrelevant medical records and information, such as an outline of his military history, his processing through the physical disability evaluation system and subsequent medical retirement, and reviewing his VA records showing the disability benefits the applicant was awarded by the VA. He states, "In terms of relevant facts and evidence, the Advisory Opinion is incomplete and inaccurate in many respects. Most importantly, is fails to discuss lay statements in support of the claim." He also missed the medical advisory submitted by counsel on behalf of the applicant. Finally, he states it inaccurately outlines the guidelines for meeting required assistance for loss of ADLs. b. In effect, the advisory copies and pastes statements from medical professionals but does not make a meaningful analysis or consideration of the applicant and his spouse’s personal statements. Counsel then copies verbatim the medical analysis of a civilian nurse not affiliated with the United States Government. (The civilian medical advisory was previously addressed in this record of proceedings.) She does conclude by saying the applicant’s medical records do not specifically describe ADL limitations, but the statements of the applicant and his spouse support the medical records by describing his injuries and his resulting complications. c. He states, in effect, the medical advisory fails in terms of the legal standard of review. (This Board operates under Title 10 (United States Armed Forces), U.S. Code, section 1552.) He states it is the VA and Title 38 (Department of Veterans Affairs), U.S Code, section 5107(b) is fully applicable to TSGLI benefits. The standard applicable in this case is of "substantial evidence." He describes its meaning as, “[w]hen there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary [VA] shall give the benefit of the doubt to the claimant.” See Koffarnus V. United States. d. He continues with his legal analysis concerning Yearwood v. United States which he previously quoted on 30 July 2017, when he appealed to AHRC Special Compensation Branch (TSGLI). His direct quote and legal analysis was previously inserted into this record of proceedings thus it will not be repeated. He states the medical advisory opinion is an incorrect legal standard. He and the applicant disagree with the application of the legal standard and the medical advisory conclusion. e. He states there is an inaccurate assessment of the TSGLI guidelines in terms of ADL assistance provided in the medical advisory. The applicant’s ADL losses are an inability to bathe without required physical and standby assistance, an inability to dress without required assistance physical and standby assistance, an inability to toilet without required standby and physical assistance, and an inability to transfer without required standby and physical assistance. For a claimant to receive benefits for loss of ADLs, only two ADLs losses are required. The applicant has claimed eight types of ADL assistance for 120 days. (1) The medical advisory discusses how adaptive equipment allows ADL independence. He states, "Hypothetically, the reviewer may be correct, however, there is no evidence that adaptive equipment was issued to the [applicant]… In fact, the overwhelming weight of the evidence demonstrates his required independence on other to perform the ADLs claimed." (2) It should be noted that the TSGLI Application and Procedures Guide have minimal requirements for the ADL tasks that require assistance. The following are excerpts from the guide: (a) He/she requires assistance from another person to bathe (including a sponge bath) more than one part of the body or get in or out of the tub or shower. (b) He/she requires assistance from another person to get and put on clothing, socks or shoes. (c) He/she must use a bedpan or urinal to toilet or, 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. (d) He/she requires assistance from another person to move into or out of a bed or a chair. f. He states the medical advisory is incomplete because it does not sufficiently discuss the specific ADLs of bathing, dressing, toileting, and transferring. He concludes by stating, "An unbiased and fair evaluation based on the totality of the evidence would only find that the severity of the [applicant’s] injury coupled with the statements and other evidence meets the criteria for approval of 120 days of ADL losses." 22. In summary, counsel asserts that court cases set precedence for the ABCMR to grant losses for ADLs based on spouse’s statements and civilian (nongovernmental medical professionals) statements. This Board looks at each case independently. Court cases do not set precedent for this Board. a. The applicant incurred a traumatic injury to his left leg for which he saw many medical professional providers as shown through his medical records. At no point in the medical records does it address loss of ADLs and how he should navigate himself to attain functioning of his ADLs. In fact during his physical therapy appointments it was shown he was riding a bicycle as a warm up activity prior to treatment by a physical therapist concerning his left knee and ankle range of motion. The physical therapist released the applicant from treatment with no duty/work related limitations. b. When he saw the orthopedic surgeons they were more mindful placing him on convalescent leave (once for 30 days) and physical profile for 90 days in May 2012. (It is presumed he had nearly 6 weeks of convalescent leave immediately following his first surgery on 19 March 2012.) c. The applicant did receive TSGLI payments totaling $50,000 for limb salvage surgeries and subsequent treatment. To receive additional TSGLI payments as authorized by law, the applicant must demonstrate by a preponderance of the evidence the continuing loss of two ADLs for 90 consecutive days (additional $25,000) and two ADLs for 120 consecutive days (additional $25,000). The total payment for TSGLI may not exceed $100,000. The date of injury was 19 March 2012. He was medically retired on 29 September 2013 under the provisions of Army Regulation 635-40, chapter 4. In 2016, the applicant’s left lower leg above the knee was amputated. d. His wife said she prepped the bathroom for him and helped him enter the tub after wrapping his leg in plastic to protect it from water. She then remained outside the bathroom in their bedroom so she was only a vocal call away from him. She also stated she laid out his clothes on the bed, but she did not specifically state she helped him dress or that she provided him with oral instructions on how to dress himself. Further both state they lived in a duplex requiring him to maneuver stairs with her assistance as well as assisting him in and out of the bed and chairs (transferring ADL). BOARD DISCUSSION: 1. The Board carefully considered the applicant’s request, supporting documentation and evidence in the records. The Board considered the applicant’s statement and the statement provided by counsel, the nature of his injuries and the progression of his recovery, the amputation of his limb and his disability retirement The Board considered the reviews by AHRC and the approval for TSGLI benefits due to limb salvage. The Board considered records and statements provided pertaining to days 61-120 after his traumatic injury and the applicant’s current VA disability compensation. The Board considered the review and conclusions of the medical advising official and the responses from the applicant through counsel. The Board majority found sufficient evidence to determined that the applicant was unable to independently execute two ADLS (bathing and transferring) during the period of 61-120 days following the traumatic injury; one member concurred with the advising official and found the evidence insufficient to show the applicant was not able to perform two or more ADLs. Based on a preponderance of evidence, the Board majority determined that the applicant was entitled to additional TSGLI benefits. 2. After reviewing the application and all supporting documents, the Board found that relief was warranted. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : :XXX :XXX GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XXX : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected to reflect: - the applicant was unable to perform 2 or more Activities of Daily Living (ADLs) during the period of 61-120 days following his traumatic injury, and; - payment of $50,000 in TSGLI benefits to the applicant as a result of the correction above. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Public Law 109-13 (The Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief 2005) signed by the President on 11 May 2005 established the TSGLI Program. The U.S. Army Combat-Related Special Compensation Office has been designated as the lead agent for implementing the Army TSGLI Program. The TSGLI Program was established by Congress to provide relief to Soldiers and their families after suffering a traumatic injury. TSGLI provides between $25,000.00 up to $100,000.00 to severely injured Servicemembers’ 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 two ADLs. 4. Part II losses include traumatic injuries resulting in the inability to perform at least two ADLs 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 ADLs, 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 ADLs (Counsel claims there are eight ADLs) 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. a. A patient is unable to bathe independently if he/she requires physical, stand-by, or verbal assistance from another person to bathe more than one part of the body (via a tub bath or sponge bath) or get in or out of the tub or shower. b. A patient is unable to maintain continence independently by managing a catheter or colostomy bag. The patient is also unable to maintain continence independently if she/he is partially or totally unable to control bowel or bladder function. c. A patient is unable to dress independently to get in and out of the appropriate clothing (i.e. dress for the correct season), socks or shoes (may have help tying shoe laces). d. A patient is unable to eat independently to get food from a plate to the mouth, or take liquids nourishment from a straw or cup. The patient is also unable to eat independently if he/she is fed intravenously or by a feeding tube. e. A patient is unable to toilet independently to go to and from the toilet, get on and off the toilet, clean self after toileting, or getting clothing off and on before and after toileting. f. A patient is unable to transfer independently to move into or out of a bed or chair. 5. When a member is unable to perform two of the six ADLs due to a traumatic injury other than traumatic brain injury, the TSGLI benefit will be paid based on the number of consecutive days the member is unable to perform the ADL. The duration of the loss of ADL includes the date the member began to be unable to perform an ADL and the date the member was again able to perform the ADL. The total payment many not exceed $100,000 and the schedule is as follows: * $25,000 at the 30th consecutive day * an additional $25,000 at the 60th consecutive day * an additional $25,000 at the 90th consecutive day * an additional $25,000 at the 120th consecutive day 6. 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. 7. 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. 8. The injured servicemember who suffered a scheduled loss will be paid the traumatic injury protection benefit in accordance with Title 38, U.S. Code, section 1975 and title 38 Code of Federal Regulation section 9.13. If a member is legally incapacitated, the member’s guardian or agent or attorney acting under a valid power of attorney will be paid the benefit on behalf of the member. 9. 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) AR20180016531 20 1