IN THE CASE OF: BOARD DATE: 14 September 2020 DOCKET NUMBER: AR20190000674 APPLICANT REQUESTS: payment of Traumatic Servicemembers’ Group Life Insurance (TSGLI). APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Department of Veterans Affairs (DVA) partial rating decision undated * Letter from U.S. Army Human Resources Command (HRC), Personnel Action Branch (TSGLI Office), dated 22 July 2010 * Letter from medical doctor dated 9 August 2010 * SGLV Form 8600 (TSGLI Application) dated 17 July 2016 * Letter from HRC, TSGLI Program Manager, dated 22 July 2016 FACTS: 1. The applicant did not file within the 3 year time frame provided in Title 10, U.S. Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. The applicant states his combat injury resulted in his hospitalization for a while. 3. The applicant’s official military personnel file maintained on the Interactive Personnel Management System (iPERMS) contains evidence to support the following facts: * prior honorable Regular Army service ending on 9 December 1993 * prior honorable Army National Guard of the United States service ending on 6 June 2002 * enlisted in the Regular Army on 7 June 2002 * primary specialty food service operator (cook) * promoted to sergeant (SGT)/pay grade E-5 on 1 June 2004 * service in Iraq from 18 January 2005 through 18 January 2006 * released from assignment due to physical disability on 20 September 2006 * placed on the temporary disability retired list (TDRL) on 21 September 2006 in the rank of SGT/E-5 with a 30 percent disability rating; his injury was in the line of duty during a period of war and his disability resulted from a combat related injury * he was removed from the TDRL and permanently retired on 10 October 2008 due to post-traumatic stress disorder (PTSD) secondary to a head injury from a motor vehicle accident on 3 March 2005 while deployed to Iraq; he requires medication and psychotherapy; and his physical evaluation board rating increased to 50 percent solely for PTSD * on 13 August 2014 after an application to the ABCMR, his 18 August 2006 TDRL percentage of disability was increased to 50 percent * on 22 July 2010, HRC reviewed his TSGLI appeal request and did not overturn its previous adjudication stating he did not meet the minimum qualifications for TSGLI compensation * on 22 July 2016, HRC again reviewed his TSGLI appeal request stating he had exhausted his appeal rights within HRC and advised him to apply to the ABCMR to appeal their denial decisions 4. The applicant provided the following evidence for the Board’s consideration that has not been previously presented in this record of proceedings. a. A partial DVA rating decision (undated) showing he received a 100 percent disability rating because he was hospitalized for over 21 days starting on 13 November 2008 and he was discharged on 8 January 2009. He was hospitalized for his PTSD at a VA medical center PTSD unit. He was treated with biofeedback, group therapy, individual therapy, kinesiotherapy, recreational therapy, and received numerous medications for his symptoms. During his period of hospitalization his VA rating was 100 percent. Upon discharge from the hospital it was reduced to 50 percent effective 1 February 2009 because his medical condition was considered stable. b. A second DVA rating decision (undated) showing his evaluation for PTSD was 50 percent and upon his appeal it was increased to 100 percent disabling. It restates his period of hospitalization for PTSD was from 13 November 2008 through 8 January 2009. It established his new rating because his PTSD symptoms resulted in his total occupational and social functioning impairment including he was unemployed. At the time his global assessment of functioning score was 39. [This score equates to some impairment in reality testing or communication or major impairment in several areas such as work, family relations, judgment, thinking, or mood as per the Diagnostic and Statistical Manual of Mental Disorders (DSM) IV.] This new rating was retroactive to 1 February 2009. Additionally, his service-connection for residuals of traumatic brain injury (TBI) was increased from 30 percent disabling to 40 percent disabling effective 17 February 2009. c. A DVA letter from a medical doctor dated 9 August 2010 stating the applicant has moderate to severe TBI from his injury while serving in Iraq. He had a 2-month hospital stay. (The medical doctor did not provide the dates of the applicant’s hospital stay.) The letter is signed. d. His SGLV Form 8600 dated 17 July 2016 showing he was injured in a motor vehicle accident while in Iraq on 3 March 2005. The vehicle he was traveling in went off the road into a ditch and he was thrown forward striking his face and head. He complained of hearing loss, tinnitus, facial numbness, recurrent headaches, and impaired concentration. He was medically evacuated to Landstuhl Regional Medical Center in Germany for continued evaluation. He states he was treated as an inpatient hospitalization during the period from 13 November 2008 to 8 August 2009 by a DVA medical center through the DVA health care system by a doctor of psychology. He outlines his inability to independently perform activities of daily living (ADL) due to his TBI stating he has been a participant in the DVA caregivers program for several years. He states: Because Veteran conditions took place in 2005 and are all documented by the Department of Veterans Affairs…and clearly expressed in the medical notes assigned in an attempt to override the need for another professional statement…no other medical professional statement should be needed on this application based on Veteran stay in the hospital and the fact that he has been receiving assistance living through the Veterans Affairs care giver program for years. (1) ADL – he is unable to bathe independently since 13 November 2008 because he constantly has to be reminded through verbal assistance (must be instructed because of cognitive impairment). (2) ADL – he is unable to maintain continence independently since 13 November 2008 because he is constantly reminded to do ADLs by verbal assistance (must be instructed because of cognitive impairment). (3) ADL – he is unable to dress independently since 13 November 2008 because he constantly has to be reminded by verbal assistance (must be instructed because of cognitive impairment). (4) ADL – he is unable to toilet independently since 13 November 2008 because he has to be reminded to clean himself properly by verbal assistance (must be instructed because of cognitive impairment). (5) ADL – he is unable to transfer independently since 13 November 2008 because he is constantly reminded of the location and time when it comes to transferring from one appointment to another by verbal assistance (must be instructed because of cognitive impairment). e. His SGLV Form 8600 does not include a medical professional’s comments rather the applicant said he included a separate medical professional’s statement and his DVA records are also signed by medical professionals. His TSGLI application is not signed by a medical professional. The applicant inserted the acronym "N/A" meaning not applicable where a medical professional’s signature is required. The applicant did sign his application. 5. The Army Review Board Agency (ARBA) Medical Advisor reviewed the supporting documents and the applicant's records in iPERMS, the Armed Forces Health Longitudinal Technology Application (AHLTA), Health Artifacts Image Management Solutions (HAIMS) and the VA's Joint Legacy Viewer (JLV) and made the following findings and recommendations: a. A review of the VA records through JLV revealed the applicant is service connected for total combined VA rated disabilities at 100 percent for the following: Post-traumatic stress disorder (100 percent); Migraine headaches (50 percent); Traumatic brain disease (40 percent); Limited motion of arm (20 percent); Limited motion of ankle (10 percent) Lumbosacral or cervical strain (10 percent); Flat foot condition (0 percent); Tinnitus (10 percent); Labyrinthitis (10 percent); Deformity of penis (0 percent); Paralysis of seventh cranial nerve (0 percent); and Loss of motion of thumb (0 percent) b. The applicant’s medical conditions were duly considered during medical separation processing. c. The applicant sustained a TBI when his vehicle ran off the road and into a ditch while in Iraq on 3 March 2005. (The records for this date and hospitalization length, if any, were not found in the records search. The information comes from the applicant’s report found in other notes.) He also developed PTSD as a result of the traumatic event. JLV search shows he was briefly hospitalized from 8 May through 10 May 2006 for severe panic attacks. Review of the VA records through JLV shows the applicant was admitted to the hospital for a total of 56 days from 13 November 2008 to 8 January 2009 for worsening PTSD symptoms. The applicant is requesting payment through TSGLI for the 2008 hospitalization. He believes that his claim qualifies for compensation because of the lengthy 2008 hospitalization and his assertion that he cannot perform the following ADLs without constant verbal reminders due to cognitive impairment since 13 November 2008 and is ongoing: * Unable to bathe independently * Unable to maintain continence independently * Inability to dress independently * Unable to toilet independently * Unable to transfer independently d. The applicant submitted paperwork that did not include a medical professional’s certification of his inability to perform the listed ADLs. He contends that his medical records contain all pertinent medical evidence with the appropriate signatures. It is also noted, that one of the basic requirements for qualifying for TSGLI payment is the member must suffer the scheduled loss within two years (730 days) of the traumatic event. In this case, the alleged scheduled loss (November 2008 hospitalization) occurred more than 3 years after the traumatic event (March 2005 TBI). In addition, while hospitalized, the applicant participated in a self-administered medication program during which he was deemed fully capable and compliant with his daily multiple dosing medications, timing for refills, and knowledge of pharmacy hours. Nursing completed pill count monitoring and noted no irregularities. Also during his hospital stay, he signed himself out on several occasions for day long passes that to all appearances were unsupervised. On one occasion this was to attend to a problem his daughter was having at her school. And finally, the discharge note relayed that he was appropriately dressed and well-groomed on all occasions without noting that he needed any assistance in accomplishing this. e. The evidence suggests the applicant was able to complete all ADLs Independently – without physical, stand-by and/or verbal assistance. Based on review of the medical evidence, the applicant’s claim does not meet requirements for TSGLI compensation. A copy of the complete medical advisory was provided to the Board for their review and consideration. 6. 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. 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) b. The HRC official TSGLI website lists two types of TSGLI losses, categorized as Part I and Part II. 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 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. BOARD DISCUSSION: After review of the application and all evidence, the Board found insufficient evidence to grant relief. The Board agreed with the ARBA Medical Advisory Opinion that the evidence suggests the applicant was able to complete all ADLs Independently – without physical, stand-by and/or verbal assistance. The Board noted that the applicant was able to perform all ADLs to the extent that he was able to attend his daughter’s graduation. Therefore, the Board found that the applicant’s claim does not meet the requirements for TSGLI compensation. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING :XX :XX :XX 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. REFERENCES: 1. Title 10, U.S. 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 Army Board for Correction of Military Records (ABCMR) to excuse an applicant's failure to timely file within the 3 year statute of limitations if the 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 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) 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. 4. Part I losses includes sight, hearing, speech, quadriplegia, hemiplegia, uniplegia (partial paralysis), 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. 5. 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 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. 6. 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 7. When a member is unable to perform two of the six ADLs due to a traumatic brain injury and/or hospitalization due to a 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 15th consecutive day * an additional $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 8. 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. 9. 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. 10. 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. 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. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190000674 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1