BOARD DATE: 6 October 2020 DOCKET NUMBER: AR20190012785 APPLICANT REQUESTS: through Counsel, correction of his military records to show his entitlement to payments totaling $50,000.00 for a denied Traumatic Servicemembers' Group Life Insurance (TSGLI) claim for visual field loss and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Power of Attorney * Purple Heart Certificate * U.S. District Court Decisions * TSGLI Procedural Guide * Medical documents * TSGLI Claim Forms * TSGLI Denial Letters * Independent Medical Evaluation * Traumatic Injury Protection Legal Information FACTS: 1. Counsel states the most recent TSGLI decision has made a false assumption regarding Dr. S's statement that "this pattern of visual field loss is not physiologic." In the decision, this is assumed to mean "there is another non-physical cause of the pattern and implies a psychiatric nature." This assumption is unsupported by any evidence. There is a clear traumatic brain injury (TBI) blast injury that impacted the applicant's eye. There is no other injury or explanation in medical records for the visual field loss. Also, as Dr. B explained, "I agree 'This pattern of visual field loss is not physiologic.' It is more likely than not pathologic-abnormal-secondary to the blast that caused an open globe injury when he was injured on active military duty." Assuming arguendo, even if the suture treatment and surgery would not have addressed the visual field loss, this does not mean the visual field loss did not occur from the TBI blast. It simply means the visual field loss was not addressed in the surgery and treatment outlined in the records. It has no bearing on the cause of the loss. Thus, this finding is an error and an injustice. 2. The applicant is currently serving in the Army National Guard. 3. The applicant was ordered to active duty in support of Operation Enduring Freedom. He entered active duty on 23 September 20124. He served in Afghanistan from 16 November 2012 through 19 June 2013. He was honorably released from active duty on 3 August 2014, he completed 1 year, 4 months, and 3 days of net active service this period. 4. On 1 June 2014, the applicant completed an Application for TSGLI Benefits. The application states: a. On 13 June 2013, while deployed a directionally focused charged improvised device caused him to lose consciousness for 15 seconds with direct injury to the right eye, face and head. Combat related injuries resulted in a traumatic brain injury and shrapnel in both eyes; shrapnel was pulled from the left eye. Shrapnel in the right eye required surgery. Two sutures were placed in the right eye and will remain in indefinitely. The procedure was corneal laceration eye surgery which resulted in two sutures, scarring on the right eye ball and leaving the right eye with a field of vision of 7 degrees. b. Dr. S, the applicant's eye surgeon, indicated the applicant had loss of sight in right eye or anatomical loss of right eye. The applicant visual field in his right eye was 5 degrees. The medical professional stated she saw the applicant on 19 February 2014 at which time these were the findings. The onset was unknown. Since she did not see the patient at the time of his injury, obtaining records from his previous ophthalmologist if the patient desires may be helpful. c. Dr. S stated the cause of the visual field loss in the right eye was not clear based on the applicant's current examination. Prior records may help because she saw him 8 months after his surgery. She further stated the applicant had visual field loss in the right eye, but preserved central activity. The applicant had a history of ruptured globe OD with no current injury or new disease process that would otherwise contribute to vision loss. (OD is the abbreviation for oculus dexter which is Latin for right eye. OS is the abbreviation for oculus sinister which is Latin for left eye.) d. The document was signed by Dr. S on 19 May 2014, attesting she observed the patient’s loss. 5. On 19 November 2014, the applicant's TSGLI claim was not approved because his loss was the result of a physical or mental illness. Losses that result from a physical or mental illness are not covered under SGLI. The applicant was informed he had the right to appeal within one year of the letter. 6. It appears the applicant resubmitted his TSGLI claim and on 14 March 2016, the applicant was informed his TSGLI claim was disapproved because the medical documentation provided indicated his loss was not physiologic, by a neuro- ophthalmologic expert. The report did indicate he had some minor visual loss due to his injury however his visual acuity was 20/20. The documented tubular vision was not consistent with the injury claimed. a. According to the regulations that govern the TSGLI Program, losses that result from a physical or mental illness or disease, other than a pyogenic infection or a physical illness or disease caused by biological, chemical, or radiological weapons, or accidental ingestion of a contaminated substance, are not covered under TSGLI. b. Under TSGLI, 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 Organization. This includes Combat Support Hospitals, Air Force Theater Hospitals and Navy Hospital Ships. c. He was advised of his right to appeal the decision within 1 year of the date of his denial letter. 7. The applicant retained counsel and signed a document authorizing him to represent him in his TSGLI claim. On 18 June 2018, on behalf of the applicant, counsel completed a TSGLI Appeal Request Form and Application. The application states: a. On 13 June 2013, the applicant was hit by a roadside bomb in Kandahar, Afghanistan and suffers from trauamitc brain injuries, vision loss, and many other traumatic injuries.. b. Dr. S, the applicant's eye surgeon, indicated the applicant had loss of sight in right eye or anatomical loss of right eye. The applicant visual field in his right eye was 5 degrees. The medical professional stated she saw the applicant on 19 February 2014 at which time these were the findings. The onset was unknown. Since she did not see the patient at the time of his injury, obtaining records from his previous ophthalmologist c. Dr. S stated the cause of the visual field loss in the right eye was not clear based on the applicant's current examination. Prior records may help because she saw him 8 months after his surgery. She further stated the applicant had visual field loss in the right eye, but preserved central activity. The applicant had a history of ruptured globe OD with no current injury or new disease process that would otherwise contribute to vision loss. d. The document was signed by Dr. S on 19 May 2014, attesting she observed the patient’s loss. 8. Counsel states, in part, a. He and the applicant request that TSGLI evaluate all evidence submitted herein to support the applicant's TSGLI claim for ADL losses. Service members pay into the SGLI/TSGLI insurance program each month with the expectation if they are severely injured, there will be financial assistance to help them and their families. Unfortunately, the government is the insurance policy holder of SGLI, which limits any lawsuit for bad faith. The absence of potential bad faith insurance actions, which is a check and balance system on wrongful denials, creates a greater responsibility of the TSGLI office to be self-policing, and there must be careful consideration to avoid wrongful denial and to fully consider the totality of all evidence. b. According to TSGLI Procedures Guide, in order to qualify for TSGLI benefits there must be “Total and permanent loss of sight or loss of sight that has lasted 120 days; If the member’s visual acuity in at least one eye is…greater than 20/200 with corrective lenses and their peripheral vision in at least one eye is a visual field of 20 degrees or less and the loss of vision has lasted at least 120 days or will not improve (with reasonable certainty) throughout member’s life”. With all due respect, Dr. S noted, "This pattern of visual field loss is not physiologic" when referring to the 7 percent visual field measurement in his right eye. This means it is an anomaly. It is abnormal or atypical. This is a severe loss of peripheral vision. Normal peripheral vision measures 90 degrees temporally to central fixation, 50 degrees superiorly and nasally, and 60 degrees inferiorly. Upon review of the TSGLI guidelines, the applicant's vision loss qualifies for benefits as his visual acuity was 20/20 which correlates with the TSGLI guideline for loss of sight; "Greater (better) than 20/200 with corrective lenses." c. In light of new and previously provided exhibits, medical records, and other supporting evidence, the applicant is entitled to a recovery of $50,000.00 under the TSGLI coverage. Therefore, in light of the foregoing, and on behalf of the applicant, he respectfully request $50,000.00 in TSGLI benefits to be issued. Counsel's complete statement is available for review and consideration. 9. Counsel provides an Independent Medical Evaluation Letter from Dr. B, dated 18 June 2018, in which outlines his credentials, gives a cases summary, and states, in effect, the applicant clearly meets the TSGLI guidelines for peripheral vision loss and his loss lasted at least 120 days and is not considered to improve. Dr. B's complete evaluation is available for the Board's review and consideration. 10. On 17 September 2019, counsel's TSGLI appeal on behalf of the applicant was disapproved. The denial letter states, in part: a. After reviewing the claim and supporting documentation, they were unable to overturn the previous adjudication concerning loss of visual field in the right eye from the traumatic event on 13 June 2013, in Afghanistan. b. For the visual field loss claim, the medical record clearly shows the applicant developed visual field loss in the right eye that is less than 20 degrees, as documented in the 19February 2014, Neuro-Ophthalmology Consultation. However, there is not a direct correlation between the traumatic injury and the scheduled loss. The 14 June 2013 and 17 June 2013, Clinic Notes document the right eye had a three millimeter 90-percent thickness corneal laceration at 10 o'clock and a 90-percent thickness one millimeter corneal laceration at 2 o'clock. The 10 o'clock laceration was surgically repaired on 14 June 2013, with two sutures, which healed to reveal a suture at the 10 o'clock position with surrounding abrasion and scar/endothelial precipitates at the 2 o'clock position. This type of injury/scar development should only affect the upper visual field, not give a tunnel/tubular effect. c. However, the 19 February 2014, Neuro-Ophthalmology Consultation documents a very constricted visual field of approximately seven degrees centrally and describes this pattern of constriction as a tunnel, often termed "tubular vision." This Neuro- Ophthalmologist states "this pattern of visual field loss is not physiologic," which indicates this pattern cannot be explained by the type of physical injury and objective physical findings of her examination. This statement indicates there is another non- physical cause of the pattern and implies a psychiatric nature. This same Neuro- Ophthalmologist, Dr. S, further expounds upon this in the 19 May 2014, TSGLI application, where she states "the cause of the visual field loss in the right eye is not clear based on his current examination." Thus, the scheduled loss cannot be proven to be a direct result of the traumatic physical damage from the traumatic event and no other cause. In addition, a TSGLI benefit will not be paid for a scheduled loss resulting from a mental illness, disease, or disorder. Consequently, if the tubular visual field loss is cause by a psychiatric condition, the visual field loss is not eligible for TSGLI payment. Therefore, the applicant's visual field loss claim does not qualify for payment. d. The applicant's statement along with Dr. B's statement were reviewed and considered for this adjudication. They both discuss he had a traumatic event from an IED blast, had right eye corneal scarring, and developed a visual field loss. This is not disputed. However, the visual field loss pattern does not match the physical damage of his right cornea, as discussed above. In addition, they both state he had an open globe repair of his right eye, even quoting Dr. S's 19 February 2014, note which states this. However, the medical record shows he did not have a right eye globe injury. The 14 June 2013, Navy Role Note, the 14 June 2013, Operative Report, the 17 June 2013, Clinic Note, and the 18 June 2013, Ophthalmology Note document a superficial, partial thickness laceration of the right cornea that was repaired with two sutures. The 18 June 2013 Ophthalmology Note and 19 February 2014 Neuro­Ophthalmology Consultation document normal dilated funduscopic exams, which indicates no damage to the globe of the right eye. Thus, the right eye injury was superficial and was not a more severe injury, such as an open globe e. The applicant has the right to apply to the Army Review Boards Agency if he disagrees with the decision. In addition to the administrative appeals process, he had the right to appeal this decision in federal court. 11. 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. 12. Based on the applicant’s contention, the Army Review Boards Agency (ARBA) medical staff provided a medical review for the Board members. See ?MEDICAL REVIEW? section. MEDICAL REVIEW: 1. The ARBA Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), and the Interactive Personnel Electronic Records Management System (iPERMS). 2. The applicant is applying to the ABCMR requesting reversal of the denials of his application for benefits from the TSGLI program. He is claiming entitlement to the benefit for loss of vision in his right eye secondary to an IED blast on 13 June 2013 while in Kandahar, Afghanistan. 3. The Record of Proceedings outlines the circumstances of the case. It documents the three previous denials of his claim for benefits. The three denials are consistent with each other. They note that the extent of his subjective vision loss was not consistent with his injury of two small superficial corneal lacerations. They note that the neuro-ophthalmologist who later examined him opined "this pattern of visual field loss is not physiologic," indicating his “tubular” vision pattern could not be explained by the type of physical injury and objective physical findings of her examination. 4. This claim for vision loss is based on the TSLGI Procedural Guide criteria that the visual acuity with corrective lenses is better than 20/200, with a visual field of 20 degrees or less, which has lasted at least 120 days OR will not improve (with reasonable certainty) throughout member’s life. 5. The visual field refers to the total area in which objects can be seen in the side (peripheral) vision as you focus your eyes on a central point, i.e., without moving the eye. A normal visual field is an island of vision measuring 90 degrees temporally (to the outside), 50 degrees superiorly and nasally (toward the nose), and 60 degrees inferiorly. Tunnel vision occurs when one loses visual in the peripheral visual fields while retaining visual acuity in the central regions. “Tubular vision” is a severe form of tunnel vision in which the visual field is like looking through a tube. 6. The Adjutant General’s denial memorandum in the supporting documentation nicely lays out the history of the case. In part: For the visual field loss claim, the medical record clearly shows the Mr. [applicant] developed visual field loss in the right eye that is less than 20 degrees, as documented in the February 19, 2014 Neuro-Ophthalmology Consultation. However, there is not a direct correlation between the traumatic injury and the scheduled loss. The June 14, 2013 and June 17, 2013 Clinic Notes document the right eye had a three millimeter 90% thickness corneal laceration at 10 o'clock and a 90% thickness one millimeter corneal laceration at 2 o'clock. The 10 o'clock laceration was surgically repaired on June 14, 2013 with two sutures, which healed to reveal a suture at the 10 o'clock position with surrounding abrasion and scar/endothelial precipitates at the 2 o'clock position. This type of injury/scar development should only affect the upper visual field, not give a tunnel/tubular effect. 7. One item not mentioned in the denials is the applicant’s visual field testing the day after the injury, on 14 June 2013. While annotating the small corneal lacerations noted above, the provider also noted that his visual fields (VF) were full to confrontation for both eyes, and he repeats this when he notes “Confrontation VF” normal. The note also shows there was no damage to the anterior chamber in front of the lens, the lens itself, or the pupil. The 18 June 2013 Ophthalmology note documents normal dilated funduscopic exams, showing there was no damage to the globe of the right eye. Thus, the right eye injury was superficial and was not a more severe injury, 8. The Adjutant General’s denial memorandum goes on to note the period between the injury and the “tubular” vision: The same neuro-ophthalmologist, Dr. RS, further expounds upon this in the May 19, 2014 TSGLI application, where she states "the cause of the visual field loss in the right eye is not clear based on his current examination." Thus, the scheduled loss cannot be proven to be a direct result of the traumatic physical damage from the traumatic event and no other cause … that he had a traumatic event from an IED blast, had right eye corneal scarring, and developed a visual field loss is not disputed. However, the visual field loss pattern does not match the physical damage of his right cornea, as discussed above. This is correct given that his visual fields were normal the day following the injury. 9. Based on the information currently available, it is the opinion of the Agency Medical Advisor that there is no medical documentation supporting the applicant’s claims. Therefore, no TSGLI payment is warranted. BOARD DISCUSSION: 1. The Board determined the available evidence is sufficient to fully and fairly consider this case without a personal appearance by the applicant. 2. The Board concurred with the decisions issued by the HRC TSGLI office and The Adjutant General. As confirmed by the ARBA Medical Advisor, the available records do not establish a link between the applicant's injury while deployed and the visual field loss he endured later. Based on a preponderance of evidence, the Board determined the decision to deny the applicant's TSGLI claim was correct and should not be changed. 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. 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. 6. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error injustice by a preponderance of the evidence. It is not an investigative body. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20190012785 8 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1