IN THE CASE OF: BOARD DATE: 18 May 2021 DOCKET NUMBER: AR20200001548 APPLICANT REQUESTS: through counsel – * approval of his additional Traumatic Servicemembers' Group Life Insurance (TSGLI) claim in the amount of $25,000 * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel Proof and Acknowledgement of Representation dated 27 April 2018 * Exhibit A: letter for U.S. Army Human Resources Command (AHRC), Special Compensation Branch (TSGLI) with SGLV Form 8600A (TSGLI Appeal Request Form) dated 8 October 2018 * Exhibit B: x-rays of skull * Exhibit C: Medical Opinion, Independent Nurse Reviewer, dated 6 October 2018; letter from AHRC, Special Compensation Branch (TSGLI), dated 4 November 2019 to counsel; information sheet "Life Insurance Options for Transitioning Service Members, Veterans and Spouse"; letter for AHRC, Special Compensation Branch (TSGLI) dated 14 June 2018 with SGLV Form 8600 (Application for TSGLI Benefits) dated 27 April 2018; numerous photographs of applicant (field hospital, Purple Heart, eye surgery * Exhibit D: Medical Evaluation Board (MEB) Narrative Summary dated 20 October 2004; DA Form 199 (Physical Evaluation Board (PEB) Proceedings) dated 18 January 2005; DD Form 214 (Certificate of Release or Discharge from Active Duty) for the period ending 14 February 2005; NGB Form 22 (Report of Separation and Record of Service) for the period ending 14 February 2005; DD Form 215 (Correction to DD Form 214) dated 30 August 2005; excerpts from military personnel record; Department of Veterans Affairs (VA) Rating Decisions dated 5 May 2005, 26 August 2008, 4 June 2009, 22 March 2010, 22 February 2011, and 21 April 2011; Neuropsychological Report dated 23 August 2007 with supporting evidence; letter from Office of Servicemembers’ Group Life Insurance to applicant dated 14 January 2010; letters from AHRC, Special Compensation Branch (TSGLI) dated 23 September 2015, 26 July 2017 and 9 March 2018 to applicant; letters from AHRC, Special Compensation Branch (TSGLI), dated 4 May 2018 and 19 September 2018 to counsel; chronological history of facial reconstruction; * U.S. District Court, , v. USA, memorandum opinion and order * U.S. District Court, , v. USA Memorandum Opinion and Order * U.S. District Court, 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 * U.S. District Court, , v. USA, memorandum opinion * Title 38, Code of Federal Regulations, section 9.20 * TSGLI Procedural Guide FACTS: 1. Through counsel, the applicant requests TSGLI payment of an additional $25,000 for facial reconstruction to correct traumatic avulsions of the face or jaw that have caused him discontinuity defects under the TSGLI Schedule of Losses. The applicant received $50,000 TSGLI payments as of the date of his application and in accordance with the TSGLI Schedule of Losses he is entitled to a total of $75,000 for facial reconstruction. The decisions made by Headquarters, U.S. Army Human Resources Command (HRC), Special Compensation Branch are erroneous and an injustice. Specifically, the decisional letter dated 4 November 2019 failed to adequately assess the medical records, medical opinions, and other supporting evidence that would allow approval of the applicant’s claim for an additional TSGLI payment. From counsel’s review of the applicant’s entire file, it is clear to him that the preponderance of evidence supports payment of the additional $25,000 benefit. He concludes by stating the benefit of doubt standard requires approval of the scheduled and claimed loss. Counsel requests a de novo review of the applicant’s evidence. [The applicant received a TSGLI payment of $50,000 for the anatomical loss of his left eye in accordance with the Traumatic Injury Protection under TSGLI Procedural Guide Version 2.33, dated 29 December 2015, Part 9 (Appendices), Appendix A (Schedule of Losses), Part I, Number 1 (Sight). The procedural guide states a member will receive a TSGLI payment of $50,000 for the total and permanent loss of sight for each eye. He also received a TSGLI payment of $25,000 for his period of hospitalization for his traumatic brain injury (TBI). To date his total TSGLI payment equals $75,000. The total payment amount may not exceed $100,000.] 2. As a member of the State of Oregon Army National Guard (ORARNG) the applicant, an infantryman, was mobilized with his infantry unit on 12 October 2003 in support of Operation Enduring Freedom. 3. On 28 March 2004 he arrived in Iraq. 4. On 6 May 2004 he was injured in the line of duty by an enemy improvised explosive device (IED). The shrapnel from the IED penetrated the left side of his face, fracturing his left condyle and ramus of the mandible and penetrating into the left orbit, resulting in a left condyle/ramus fracture and devitalized blind left eye. He was medically evacuated out of Iraq for continued treatment. 5. Within the applicant’s medical evaluation board (MEB) evidence he had surgery to place an external skeletal fixation (a frame used to assist in healing a bone fracture) in place on his head. He ultimately was medically evacuated to Madigan Army Medical Center, Fort Lewis, Washington. A surgical report shows on 25 May 2004 he underwent surgery. The preoperative diagnosis was left mandibular condyle/ramus fracture and this remained his postoperative diagnosis. The procedures performed included removing the skeletal fixation, examining him under anesthesia and a closed reduction of left condyle/ramus fracture with maxillomandibular fixation. The narrative states, "Soldier, who suffered an injury to the left side of his face, fracturing the left condyle and ramus of the mandible and penetrating into the left orbit, resulting in a left condyle/ramus fracture and devitalized blind left eye." He underwent an enucleation of the left eye and placement of the Erich arch bars were then adapted to the maxilla and mandible with wire. The surgical report states, "The oropharynx was found to be intact. There was no evidence of hematoma or ecchymosis formation within the oropharynx, buccal mucosa or floor of the mouth. The tongue appeared normal. The salivary glands were intact bilaterally. The dentition was intact." He did have shrapnel wounds to his face. 6. On 20 October 2004, the applicant underwent a medical examination for a physician directed MEB. The medical doctor restated the date of injury and the fact that the applicant was medically evacuated to Madigan Army Medical Center for continued medical treatment. On 14 May 2004 imaging studies of his skull showed comminuted left mandibular condyle and ramus fracture, metallic foreign body in the medial aspect of the left orbit and opacification of the left maxillary sinus with associated bony disruption. The physician stated: The posterior chamber is slightly diminished in size. Optic nerve displaced medially with apparent transection, left extraconal orbital metallic foreign body just superior and medial to the medial rectus muscle, disruption of the medial and superomedial orbital walls with partial opacification of the adjacent ethmoid sinuses and left frontal sinuses, disruption of the lateral left maxillary wall with medical displacement of bony fragments, severely comminuted incompletely evaluated left mandibular fracture with wire fixation of the jaw and 1.8 cm [centimeter] region of low attenuation within the left temporalis muscle, likely representing organizing fluid collection (seroma, hematoma or developing abscess). 7. His physical examination as recorded on DD Form 2808 (Report of Medical Examination) and its accompanying narrative summary states the applicant had undergone left eye enucleation and placement of a prosthesis. His audiology reports show he had decreased hearing. He had scars below his left ear and on his right medial thigh. The narrative summary concludes identifying three diagnoses: * Status post left enucleation did not meet retention standards per Army Regulation 40-501 (Standards of Medical Fitness), paragraph 3-16e (2) * Status post fracture of left mandible met medical retention standards * Sensorineural hearing loss of left ear met medical retention standards 8. The medical doctor concluded the applicant required no ongoing medical treatment and his injuries should not impact his ability to perform duty. As he failed to meet regulatory medical fitness retention standards, the medical doctor recommended the MEB refer the applicant to the PEB. At the time the applicant indicated he wanted to continue on active duty under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation) although doctors had determined his retention on active duty was medically contraindicated. 9. In December 2004 a MEB met and recorded its findings on DA Form 3947 (MEB Proceedings). The MEB after consideration of his clinical records, laboratory findings and his physical examination recommended referring the applicant to the PEB. On 13 December 2004 his MEB was approved by the approval authority. The applicant concurred with the approval authority’s recommendation on 5 January 2005. 10. On 18 January 2005 the PEB convened and considered the medical diagnosis of loss of his left eye from shrapnel impairing his ability to perform the duties of his military occupational specialty. As his condition was medically stable, the PEB recommended a disability rating of 40 percent and his placement on the permanent disability retired list. The other two medical conditions (post fracture of left mandible and hearing loss) were considered by the PEB, found to be not unfitting, and were not ratable. 11. On 24 January 2005 the applicant was counseled by his PEB liaison officer. He concurred with the findings and recommendation of the PEB waiving a formal hearing of his case. His PEB was approved and Orders 041-0014, dated 10 February 2005, were issued releasing him from his assignment due to physical disability on 14 February 2005 and placing him on the permanent disability retired list effective 15 February 2005. 12. Accordingly, he was honorably retired from active duty on 14 February 2005 under the provisions of Army Regulation 635-40, paragraph 4-24b (1) due to permanent disability. He was issued a DD Form 214 documenting his service including his entitlement to the Purple Heart and award of the Combat Infantryman Badge. Concurrently, he was discharged from the ARNGUS and transferred to the Retired Reserve by the State of Oregon. He was issued an NGB Form 22 documenting his honorable service in the ORARNG. 13. After numerous TSGLI applications by the applicant and counsel to HRC, Special Compensation Branch; the Office of the Adjutant General, HRC, issued the applicant’s counsel a final denial letter on 4 November 2019 informing counsel and the applicant that his application for TSGLI for facial reconstruction due to his traumatic event on 6 May 2004 in Iraq was denied. As this denial decision was his last appeal, counsel and the applicant were advised they could appeal the general officer’s final denial decision to the Army Board for Correction of Military Records (ABCMR). a. The general officer who signed the letter stated: Federal Regulation 38 CFR [Code of Federal Regulation] 9.20 states facial reconstruction is surgery to correct a discontinuity loss of the jaw, nose, lips, periorbital region, or other facial tissue subunits. The TSGLI Procedural Guide further clarifies facial reconstruction is: "When a member suffers a severe maxillofacial injury, the member is eligible for a TSGLI benefit for facial reconstruction if the member meets the following standard: If the member undergoes surgery to correct traumatic avulsions (i.e. separation, detachment or tear) of the face or jaw that cause discontinuity defects AND a surgeon certifies that the surgery was to correct discontinuity loss to one or more of the following facial areas: upper or lower jaw. Note: In order to meet the standard for facial reconstruction, the member must experience a penetrating facial injury (avulsion) and lose bone or tissue that without replacement would leave a "gap" in the area of injury (discontinuity defect)." b. He continues by informing counsel the medical community’s definition of facial reconstruction is a group of procedures to repair or reshape a face and skull. The stated definition in use by the TSGLI states a member must "lose bone or tissue that without replacement would leave a gap." In reviewing the evidence provided the applicant did not have facial reconstruction due to the loss of bone or tissue. For the purpose of TSGLI, the procedure the applicant underwent using "arch bars" and wire (to set his broken jaw) does not meet the stringent TSGLI criteria for facial reconstruction. c. The applicant did receive a TSGLI payment of $50,000 for the anatomical loss of his left eye. For the purpose of the TSGLI, one cannot combine the anatomical loss of an eye with facial reconstruction. d. The general officer reviewed the applicant’s statement, the registered nurse advisory statement and all supporting evidence he provided with his many TSGLI applications and appeals to HRC. While he did undergo a procedure to tighten his left eye lid, this is not considered facial reconstruction surgery because he did not lose his eye lid tissues. 14. Through counsel, the applicant provides the following evidence in support of his application for an additional TSGLI payment of $25,000 for facial reconstruction, for his left eye to correct discontinuity (loss) of 30 percent of more of the periorbita for one eye. (The periorbita, also called the orbital periosteum or orbital fascia, covers the bones of the orbit. It is dense connective tissue membranes serving as the attachment site for muscles, tendons, and ligaments supporting blood supply to the orbital bones.) a. A SGLI Form 8600, page 8, paragraph 3 (Facial Reconstruction) states the applicant had facial reconstruction to his upper and lower jaw including 30 percent of his left periorbita and 50 percent of his left mandibular. He had an orbital fracture and damage to his left maxillary sinus area. His first surgery date is shown as 26 May 2004 and a surgeon certified this information. He also stated he could not perform activities of daily living (ADLs) identified on page 11 due to his TBI. He could not perform the ADLs of bathing, dressing, eating, toileting and transferring for the period of from 6 May 2004 through 27 May 2004. On 23 April 2009 a second medical professional certified the applicant’s multiple ADLs losses. b. He provides still photographs of two Army senior officers pinning the Purple Heart Medal to his bedsheet while he was in a military hospital. The Army officers are wearing flak vests (body armor) presumably the applicant is a patient in a military evacuation hospital in Iraq. His left eye is bandaged with dried blood seeping from his orbital periosteum. He has a large bandage on the left side of his neck and left ear. In the pictures an intravenous drip feed is in his right arm. He appears to be resting or sleeping and he is covered in an Army blanket. There is a handwritten note affixed to the sequence of four pictures identifying the date of medal presentation as 7 May 2004. c. Multiple copies of x-rays were provided showing numerous x-rays of a skull and facial bone structure. A full frontal view of the x-rayed skull shows a small object, presumably shrapnel from the IED, is lodged in the upper left quadrant of his left periorbita. This x-ray has no identifying name, number or date affixed to it. He provides four x-rays that are identified with his name, identification number, date of birth, and they are electronically date stamped 8 May 2004. In this sequence of x-rays there appears to be a facial fixation in place and his teeth appear to be wired together. d. A page containing nine colored pictures taken during a surgical procedure to remove the eyeball or globular capsule of the eye, the scleral and cornea from within the orbital periosteum. The first photograph shows a closed eye with no open wounds or scars around the orbital periosteum. The sequence of photographs shows a surgeon placed fixtures to open the applicant’s eye lid and then a surgeon is shown cutting the connective tissues around the orbit and removing the orbit and its connective tissues. There is no medical identifying information inscribed on each of the nine pictures identifying who received the surgical removal of the eye. There is a Post It Note with the applicant’s name handwritten and attached to the bottom of the photocopy of the nine pictures. This sequence of photographs is undated. e. His multiple VA rating decisions show on 15 February 2005 his combined rating was 80 percent and on 28 September 2007 it increased to a combined rating of 90 percent for the following service-connected medical diagnoses: * Post-traumatic stress disorder (PTSD) with depressive disorder, anxiety and cognitive disorder rated 30 percent from 15 February 2005 increasing to 70 percent on 28 September 2007; on 22 February 2011 these conditions were closed out and he received a rating for TBI effective 30 September 2010 rated 70 percent (an extensive narrative summary accompanies this decision) * Enucleation of left eye with implant, status post orbital fracture with globe rupture, residual of shrapnel injury 40 percent from 15 February 2005 * TBI rated 70 percent from 30 September 2010 * Degenerative joint disease, cervical spine, with chronic cervical rhomboidal, and trapezial strain rated 20 percent from 3 November 2007 * Atypical migraine headache rated 30 percent from 3 November 2007; decreased to 10 percent effective 27 December 2010 * Facial scars rated 10 percent from 23 December 2009 * Temporomandibular joint (TMJ) discomfort rated 10 percent from 15 February 2005 * Tinnitus, residual of shrapnel injury rated 10 percent from 15 February 2005 * Shrapnel wound, right left with scarring, residual of shrapnel injury rated 10 percent from 15 February 2005 * Paresthesia, cranial nerve V (nerve damage to face) rated 10 percent from 15 February 2005 * Left ear hearing loss rated 0 percent from 15 February 2005 * Scar, posterior left shoulder rated 0 percent from 15 February 2005 * Scar, behind left ear rated 0 percent from 15 February 2005 * Scar, left axilla area rated 0 percent from 15 February 2005 * Left maxillary/mandibular comminuted condyle/ramus fracture, status post maxillomandibular fixation rated 0 percent from 15 February 2005 * Right lower extremity quadriceps and medial abductor muscle impairment rated 0 percent from 26 February 2008 f. He receives VA special monthly compensation under Title 38, U.S. Code, section 114 for anatomical loss of one eye effective 15 February 2005, the day he was placed on the permanent disability retired list. g. Within his VA medical records there is a claim statement wherein a medical provider states the applicant should be reassessed for his prosthetic eye as it "was placed incorrectly." The VA sent him to an outside provider who correctly fitted the applicant with a prosthetic. My March 2008, he required an additional adjustment because his wife observed his prosthetic eye was not straight and his palpebral fissure seemed to narrow. The applicant stated in effect that it could take him approximately 3 hours to open his eyelids over his prostheses and he also had discharge coming from his eye that was noticeable on his lashes. Within this document, it states the applicant has been wearing a prosthesis since 7 December 2007. (His date of honorable retirement was 14 February 2005). On or about 14 March 2008 he stated the size of his pupil was okay. A medical provider noted the applicant’s upper eye lid pulls up at the lateral limbal edge with scar tissue and lateral canthus of the lower lid with attachment 2 millimeters below the upper lid. The provider cleaned the prosthesis and the applicant said it fit better after the cleaning. The provider then referred the applicant to Eye Plastics regarding his eye lids and their potential adjustments. h. Though identified as a "TSGLI" supporting document, the applicant provides an undated and unsigned document that was directed toward the VA wherein he was appealing undated VA rating decisions. He suffers with limited inter-incisal movement between 31 to 41 millimeters or lateral excursion between 0 and 4 millimeters due to the facial fixations he had to repair his mandibular comminuted condyle/ramus fracture from the IED blast. He lost 45 pounds during a 3-year period post his traumatic event and appears to have difficulty gaining or maintaining weight. He identifies his TBI and subsequent inability to perform ADLs. i. On or about 3 July 2017 he underwent surgery to his left eye at a VA outpatient surgery clinic for canthopexy (a surgical procedure to tighten the lower eyelid by shortening supporting structures as the lateral canthus or tendon). His diagnosis was left lower eyelid laxity. The nurse anesthetist operative report states the applicant’s surgical procedure was uneventful. j. Within his SGLV Form 8600A or TSGLI appeal application and its supporting evidence, he or his counselor requested an additional payment of TSGLI benefits because he underwent reconstructive surgery to correct avulsions of the face or jaw. In a letter dated 8 October 2018 his counsel stated, "The applicant has been awarded $75,000 [TSGLI] for inpatient hospitalization due to TBI ($25,000) and loss of eyesight for the left eye ($50,000)." k. His claim for an additional TSGLI payment is for facial reconstructive surgery to correct discontinuity loss of 30 percent or more of the periorbita, the area around the eye orbit or the layer of tissue surrounding the orbit. In a personal statement he states, "I believe that after the new facial reconstruction surgery of my floppy skin below my left eye and fixing the scar mark by my left eye area, this will finally be enough to receive final benefits. This facial reconstruction will include the past surgery as a combined effort to get benefits from TSGLI program." He further states, in effect, it is his surgeon who informed him he will undergo more skin reconstruction surgery because of his loose skin based on his removing and cleaning his prosthetic eye. He views the requirement to have facial surgeries in the future as a "procrastinating facial issue and needs long term fixing over time." l. On 14 June 2018 an independent registered nurse reviewer identified as provided counsel with a review of the applicant’s medical records. The nurse restated he was wounded in Iraq in 2004 when an IED detonated near his military vehicle. She provides a narrative summary of his military medical treatment including his multiple surgeries. (1) The nurse states on 17 May 2004, computerized tomography (CT) scans of his orbit (the cavity or socket of the skull in which the eye and its appendages are situated) with contrast revealed, "left intraocular metallic foreign bodies with a uveoscleral discontinuity suggesting disruption of the posterior chamber just adjacent to the lateral aspect of the optic nerve." His optic nerve was displaced medially without apparent transection. He had a metallic foreign body near his left extraconal orbital. There was evidence of disruption to his medial and superomedial orbital walls with partial opacification of the adjacent ethmoid sinuses and left frontal sinus. He had fractured his left mandibular. (2) On 25 May 2004, he underwent enucleation (surgical removal of the eye). (3) On 26 May 2004, he underwent maxillomandibular fixation with Erich arch bars to repair his left jaw bone fracture. The nurse opines the applicant did undergo reconstructive surgery of his left periorbita (area around the orbit) on 25 May 2004. She describes from surgical reports the surgical procedures he had undergone describing he had a left "discontinuity defect" receiving a prosthetic eye. The nurse states he lost more than 50 percent of his periorbital tissue, the tissue surrounding his eye. (4) From her review of the TSGLI guidelines, he underwent reconstructive surgery to correct the traumatic avulsions of his face causing discontinuity defects. She concludes by stating from the TSGLI Procedures Guide Version 2.42, dated 5 June 2018 that "any injury or combination of injuries under facial reconstruction may also be combined with other injuries listed in Part I and treated as one loss, provided that all injuries are the result of a single traumatic event." It is her professional opinion that the applicant meets the TSGLI guidelines for facial reconstruction of his left periorbita and should be awarded additional TSGLI payments. m. On 14 June 2018, counsel sent a letter to HRC requesting reconsideration of the applicant’s TSGLI denial decision for an additional payment of $25,000 for facial reconstruction. The applicant had undergone surgery to correct the "discontinuity loss of 30% [percent] of the periorbita." (1) He states, "Servicemembers pay into the SGLI/TSGLI insurance program each month with the expectation that if they are severely injured, there will be financial assistance to help them and their families." He continues stating it is unfortunate that the Government is the insurance policy holder which limits any lawsuit for bad faith and allows for federal court review under the ?arbitrary and capricious standard?. He states: 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 a careful consideration to avoid wrongful denials, to fully consider the totality of all evidence provided. (2) The VA administers TSGLI program benefits and under Title 38, U.S. Code, section 5107(b) this statue is fully applicable to TSGLI benefit determinations. He opines under this provision of law, the applicable standard is ?substantial evidence? meaning: ?[w]hen there is an approximate balance of positive and negative regarding any issue material to the determination of a matter, the Secretary [Department of Veterans Affairs] shall give the benefit of the doubt to the claimant." He states HRC government officials should review the court decision of Koffarnus v. United States. [In v. United States of America the plaintiff, an Army National Guard Soldier, was shot in the foot at a civilian eatery at Fort Hood, Texas on 6 September 2011. She underwent multiple surgeries for her wound. She was denied TSGLI for 45 days of loss of three activities of daily living (ADL). The Army Board of Correction of Military Records (ABCMR) also denied her multiple TSGLI applications. Upon appeal to the United States District Court , 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 denial decision based on the court agreeing with the plaintiff that the Board acted arbitrarily and capriciously when it denied her claim. It appears the board did not take into consideration all evidence presented to include physician certifications, discharge records, medical records and the spouse’s statement. Per Chappell v. Wallace, 'Board decisions are subject to judicial review and can be set aside if they are arbitrary, capricious, or not based on substantial evidence.' Concerning Koffarnus, the ABCMR reviewed the plaintiff’s application, evidence, and court order. It denied the court remanded record of proceedings in 2016. The Deputy Assistant Secretary of the Army (DASA) Review Boards (RB) reviewed the case and granted the applicant relief of loss of three ADLs for 30 days or more.] (3) He then sites 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 from a preponderance of evidence to a lessor substantial evidence standard. Counsel states: 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.' at *26. (4) The consequence of the 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 based on the ?benefit of the doubt" doctrine. While there may be support in the record for the Board’s findings, there also may be evidence which supports a contrary conclusion; indeed, there may be two permissible views. If such evidence is in the record and the Board fails to include an adequate statement of reasons or basis for its findings or its conclusions, either implicit or explicit, that the veteran was not entitled to the benefit of the doubt, the Board’s determination as to the benefit of the doubt may well be arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law, ... at **53-54, quoting 33 Feb. Proc. L. Ed. § 79:393 (5) He states, in effect, the new material evidence that the Board should consider is a video and picture of the applicant in the hospital which were submitted in an Adobe file on a computer disk (CD) identified as "Exhibit C." The second material evidence submitted is a medical review of the applicant’s medical records by an independent registered nurse. (Her statement/advisory is dated 14 June 2018 and was previously discussed within this record of proceedings.) Counsel opines the evidence identified within the CD, initially identified within this record of proceedings, demonstrates the applicant is entitled to an additional TSGLI payment of $25,000. n. On 19 September 2018, counsel received a written response from HRC, Special Compensation Branch. The official restates the applicant had received $75,000 in total payment for TSGLI claims there were approved for the loss of sight in one eye and for his hospitalization for TBI. The claim for facial reconstruction was considered, evaluated and denied. The government official, the Chief of Special Compensation Branch, informed counsel the applicant’s claim for facial reconstruction does not meet the TSGLI program guide criteria. The evidence counsel and the applicant provided did not include surgical evidence involving soft tissue flaps, grafts, or other soft tissue facial reconstruction techniques. He acknowledges there is evidence of a surgical procedure to place a Medpor orbital implant to replace the volume of the enucleated globe, but there was no other structural repair to the orbit. o. On 6 October 2018 a second independent registered nurse identified at provided an opinion to counsel concerning the applicant’s medical condition. She restates the applicant’s injury and subsequent medical treatment. She agrees with a prior nurse’s advisory dated 14 June 2018 that the applicant should be paid an additional $25,000 TSGLI benefit. The second nurse states, in effect: * Shrapnel entered his face near the angle of the left mandible, traversing to the zygoma (bony arch of the cheek) causing injury to his left eye and left mandible (jaw bone). * Projectile path included the left maxillary face, orbit floor and lateral wall, through the globe’s superomedial orbit. * His injuries included an isolated pterygoid fracture, left frontal sinus fracture and medial wall fracture, TBI, and shrapnel wounds to his left arm, right leg and face. * He underwent surgery to remove his eye with implantation of a Medpor orbital implant and an oral surgeon applied Erich arch bars and maxillomandibular fixation to his mandible bone. * She opines the applicant lost tissue causing a facial discontinuity defect of at least 30 percent by "tracing the path of shrapnel through the zygomatic bone, orbital floor, lateral wall and superomedial region." * "By drawing a picture of the aforementioned shrapnel projectile, it is clear that at least 30 [percent] of the structure is disrupted." * He underwent canthopexy surgery on 3 July 2017 to tighten his eyelid to maintain symmetry of his prosthetic eye. p. Counsel provides U.S. District Court, Division, v. USA, memorandum opinion and order. In, the ABCMR denied his claims for payment of losses of activities of daily living after a military training accident that left him partially paralyzed. In this case, the applicant’s military physician noted within his medical records that he had difficulty performing numerous ADLs. The ABCMR did not consider this evidence nor the written evidence of his spouse; therefore, the Court determined the ABCMR acted arbitrarily and capriciously when it denied the plaintiff (Blackwell) TSGL benefits for loss of ADLs because the evidence submitted by the plaintiff contradicted the evidence identified within the record of proceedings. The Court granted the applicant (plaintiff) partial relief by remanding the case back to the ABCMR for proceedings not inconsistent with the judge’s opinion. In Army Docket Number AR20160013526 to ABCMR considered the applicant’s case and the judge’s order; specifically, it granted the applicant a summary judgment sua sponte and it vacated an earlier ABCMR decision dated 26 August 2014. The Board did determine the applicant had several ADL limitations of basic functionality granting the applicant TSGLI for the loss of ADLs for the period from 12 December 2011 through 5 March 2012. q. Counsel provides U.S. District Court, Western District of Kentucky, Louisville Division, v. USA Memorandum Opinion and Order whereby the court remanded the case back to the ABCMR for proceedings not inconsistent with the court opinion. In, the ABCMR denied the applicant’s TSGLI claim for loss of ADLs after he crushed his left ankle between a forklift and wall. The accident occurred while he was performing duty. He underwent surgery and remained hospitalized. Upon discharge, he was provided medical equipment to assist him with his ADLs including a commode, shower chair and wheelchair. His hospital discharge instructions show he was not to put weight on his left leg. He had a second surgery further limiting his abilities to perform ADLs without assistance. He submitted a claim stating he could not perform ADLs for 120 days. At issue was the applicant’s medical records and his evidence lacked "substantiating evidence" to allow payment of TSGLI more than 6 years after the traumatic event. Here, again, the court determined the Board’s decision was arbitrary and capricious because the court found the applicant had submitted evidence to support his claim of loss of ADLs. As the applicant did not raise the "benefit of the doubt rule" in his petition to the ABCMR, the court declined to consider this argument. In Army Docket Number AR20160012665 the ABCMR considered the applicant’s case and the judge’s order; specifically, it granted the applicant a summary judgment sua sponte and it vacated an earlier ABCMR decision dated 12 November 2014. The Board did determine the applicant had several ADL limitations of basic functionality granting the applicant TSGLI for the loss of ADLs based on the evidence of record which the previous Board had not taken into consideration. The previous Board had misinterpreted an occupational specialist’s statement and overlooked the applicant’s spouse’s statement. r. Counsel provides U.S. District Court f, v. USA opinion and order affirming, in part, and vacating, in part, Agency Action. Each case identified by the Court involved the loss of ADLs after a traumatic injury. (1) Within the Court’s decision regarding, it states in effect that the U.S. Army reviewed the medical professional’s opinion submitted by registered nurse, who herself only reviewed medical records as a "post hoc opinion." In its decision, the ABCMR also conducted a medical review of his medical records. The Court stated, "The Court cannot say that it is arbitrary and capricious for the Army to examine and evaluate the underlying records itself, rather than relying on the certifying medical profession’s interpretation of the same records." The Court affirmed the U.S. Army’s decision. (2) For five plaintiffs, the Court affirmed the U.S. Army decisions denying TSGLI benefits for loss of ADLs. (2) For two plaintiffs identified in the Court case it appears the ABCMR did not take into consideration the first-hand witness statements attesting to the loss of ADLs and how each witness provided each plaintiff with direct assistance performing ADLs. The Court stated, in effect, that the U.S. Amy either failed to consider the witness evidence or simply discounted it without explanation. The Court determined the U.S. Army (ABCMR) decisions were arbitrary and capricious actions. The Court vacated each identified claimant’s ABCMR decision returning it to the ABCMR for required action as stated in the Court decisional document. 15. 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. 16. The Traumatic Injury Protection under TSGLI Procedural Guide Version 2.48, dated January 2021, states Loss Number 16 (Facial Reconstruction) pertains to reconstructive surgery to correct traumatic avulsions of the face or jaw that cause discontinuity defects. It notes that injuries listed under facial reconstruction may be combined with each other, but the maximum benefit for facial reconstruction many not exceed $75,000. Additionally, any injury or combination of injuries under facial reconstruction may also be combined with other injuries listed in Part I and treated as one loss, provided that all injuries are the result of a single traumatic event. The total payment amount may not exceed $100,000. The following payments are made for the specified loss: * $75,000 for the jaw – surgery to correct discontinuity loss of the upper or law jaw * $50,000 for the nose – surgery to correct discontinuity loss of 50 percent or more of the cartilaginous nose * $50,000 for one lip – surgery to correct discontinuity of loss of 50 percent or more of the upper or lower lip * $75,000 for two lips – surgery to correct discontinuity of loss of 50 percent or more of the lips * $25,000 for eyes – surgery to correct discontinuity of 30 percent of more of the periorbita for each eye * $25,000 for facial tissue – surgery to correct discontinuity loss of the tissue of 50 percent of more of any of the following facial subunits: forehead, temple, zygomatic, mandibular, infraorbital or chin (for each facial subunit) 17. Based on the applicant’s request for TSGLI due to a medical condition, 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, his prior TSGLI denials, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, 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 requests the $25,000 benefit for fascial reconstruction of the left orbital floor/wall following the 6 May 2004 traumatic event. 3. The Record of Proceedings (ROP) details the applicant’s military history and the circumstances of the case. The applicant has previously received benefits from the TSLGI program of $50,000 for total and permanent loss of sight in the left eye and $25,000 for inpatient hospitalization due to traumatic brain injury. 4. The applicant was injured on 6 May 2004 when the vehicle in which he was the gunner was struck by an improvised explosive device. He underwent surgical repair of multiple facial fractures and enucleation of the severely damaged left eye. 5. When evaluating TSLGI claims for fascial reconstruction, the TSLGI Procedural Guide states: “In order to meet the standard for facial reconstruction, the member must experience a penetrating facial injury (avulsion) and lose bone or tissue that without replacement would leave a “gap” in the area of injury (discontinuity defect).” 6. The TSGLI Procedural Guide notes the claim requirements for periorbital reconstruction is that the surgery corrects a discontinuity loss of 30% or more; and for the infraorbital region, the surgery corrects a discontinuity loss of 50% or more. On the initial TSGLI application completed in 2009, a physician has marked the box signifying the applicant underwent surgical reconstruction of the left periorbital region but then notes “orbital fracture, left maxillary sinus area.” 7. Counsel cites opinion as the principle evidence for the appeal: “Additionally, we can visualize the extent of this injury by tracing the path of shrapnel through the zygomatic bone, orbital floor, lateral wall and superomedial region. By drawing this picture, it is clear that at least 30% of the structure is disrupted. This is also supported by the fact that a 21 mm orbital implant was needed to stabilize the eye socket at the time of his enucleation surgery.” 8. The radiologist’s reports for the applicant’s four pre-operative CT scans (two fascial CTs, a fascial CT 3D reconstruction, and an orbital CT) were reviewed. Collectively they revealed a depressed fracture of the lateral wall of the left maxillary sinus (not part of the orbit); a fracture through the inferolateral wall of the left orbit; a medially displaced fracture of the lamina papyracea (posterior medial orbital wall); and fractures of the lateral orbit and orbital floor. While demonstrating multiple orbital fractures, they do not reveal any significant bone loss. 9. These fractures or as cited by counsel “disruptions” do not meet the TSGLI criteria bone loss that without replacement would leave a “gap” in the area of injury (discontinuity defect). Likewise, the orbital implant does not meet TSLGI requirement for loss necessitation fascial reconstruction. 10. The portion of left enucleation operative note included with the application (page 205) does not mention any surgical procedures of implants consistent with fascial reconstruction as defined by the TSLGI Procedure Guide. 11. Based on the information currently available, it is the opinion of the Agency Medical Advisor that the there is no evidence of fascial reconstruction as defined by the TSLGI Procedure Guide which would warrant a payment of $25,000. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was not warranted. The Board carefully considered the applicants request, supporting documents, evidence in the records and regulatory guidance. Based upon the findings and recommendations of the medical advisor, the Board concluded there was insufficient evidence to warrant approval of the applicant’s additional Traumatic Servicemembers' Group Life Insurance (TSGLI) claim in the amount of $25,000 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 up to $100,000.00 to severely injured Servicemembers’ who meet the requisite qualifications set forth by the Department of Defense. The current TSGLI Procedural Guide is Version 2.48 published in January 2021. A Servicemember must meet all of the following requirements to be eligible for payment of TSGLI. The Servicemember must have: * been insured by SGLI at the time of the traumatic event * suffered a scheduled loss that is a direct result of the traumatic injury due to a traumatic event and no other cause * 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 event * survived for a period of not less than 7 full days from the date of the traumatic event (in a death-related case) a. A traumatic injury is the physical damage to a body that results from a traumatic event. A traumatic event is 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 the body. The event must involve a physical impact upon the individual. Physical impacts do not require penetrating injuries to occur. Direct result means there must be a clear connection between the traumatic event and the resulting loss and no other factor, aside from the traumatic event can play a part in causing the loss. b. The TSGLI Procedural Guide lists two types of TSGLI scheduled losses, categorized as Part I and Part II. (1) Part I (General Provisions) states for losses listed in Part 1, multiple injuries resulting from a single traumatic event may be combined with each other and treated as one loss for purposes of a single payment. The total payment may not exceed $100,000. There are nine categories of losses covered: sensory losses, burns, paralysis, amputation, limb salvage, facial reconstruction, Activities of Daily Living (ADLs), inpatient hospitalization and genitourinary losses. (2) Part II loss payments may not be combined with payment amounts in Part 1, only the higher amount will be paid. The total amount paid may not exceed $100,000. 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. c. Appendix B (Glossary of Terms) of the TSGLI Procedures Guide, dated January 2021, provides the following definitions: (1) 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 (2) Traumatic Injury: The physical damage to a living body that results from a traumatic event. (3) 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. (4) Facial Reconstruction: Surgery to correct traumatic avulsions of the face or jaw that cause discontinuity defects. Further, when evaluating facial reconstruction based on a Servicemember suffering a severe maxillofacial injury, the Servicemember is eligible for TSGLI benefits if the member meets the following standard: If the member undergoes surgery to correct traumatic avulsions (i.e. separation, detachment or tear) of the face or jaw that cause discontinuity defects. In order to meet the standard for facial reconstruction, the member must experience a penetrating facial injury (avulsion) and lose bone or tissue that without replacement would leave a "gap" in the area of injury. A surgeon must certify that the surgery was to correct discontinuity loss to one or more of the facial areas: * the upper or lower jaw * 50 percent or more of the cartilaginous nose * 50 percent or more of the upper or lower lip * 30 percent or more of the left or right periorbita * 50 percent or more of any of the following facial subunits – * forehead * left or right temple * left or right zygomatic * left or right mandibular * left or right infraorbital * chin 2. The injured Servicemembers 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 (CFR) 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. 3. Title 38 CFR section 9.20 states the following in pertinent part: a. Section 9.20 (b) states a traumatic event is the application of external force, violence, chemical, biological, or radiological weapons, or accidental ingestion of a contaminated substance causing damage to a living being on or after 1 December 2005. A traumatic event does not include a medical or surgical procedure in and of itself. b. Section 9.20 c states a traumatic injury is physical damage to a living body that is caused by a traumatic event. A traumatic injury does not include damage to a living body caused by a mental or physical illness or disease, except if the physical illness or disease is caused by a pyogenic infection, biological, chemical, or radiological weapons, or accidental ingestion of a contaminated substance. All traumatic injuries will be considered to have occurred at the same time as the event. c. Section 9.20 (e) (4) states a benefit will not be paid if a scheduled loss is due to a traumatic injury caused by diagnostic procedures, preventative medical procedures such as inoculations, medical or surgical treatment for an illness or any complications arising from such procedures or treatment. d. Section 9.20 (e) (6) in pertinent part defines the term anatomical loss of the ovary(ies) as the amputation of one or both ovaries or damage to one or both ovaries that requires ovarian salvage, reconstructive surgery, or both. The benefit amount for the anatomical loss of one ovary is $25,000.00. e. Section 9.20 (g) states each uniformed service will certify its own members for traumatic injury protection benefits based upon section 1032 of Public Law 109-13, section 501 of Public Law 109-233, and this section. f. Section 9.20 (i) (3) states nothing in this section precludes a member from pursuing legal remedies under Title 38, U.S. Code, section 1975 or 38 CFR section 9.13. 4. 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 //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200001548 19 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1