IN THE CASE OF: BOARD DATE: 29 March 2021 DOCKET NUMBER: AR20200004690 APPLICANT REQUESTS: through Counsel: * approval of his Traumatic Servicemembers’ Group Life Insurance (TSGLI) claim * 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 * 29 pages of University Medical Center medical records * multiple Orthopedic medical records * multiple pages of physical therapy daily treatment notes and discharge summary * initial SGLV 8600 (Application for TSGLI Benefits), dated 18 April 2017 * U.S. Army Human Resources Command (AHRC), Special Compensation Branch, TSGLI Office letter, dated 3 October 2017 * AHRC, Special Compensation Branch, TSGLI Office letter, dated 1 February 2018 * Counsel’s letter, dated 20 February 2018 * SGLV 8600, dated 8 January 2018 * applicant’s self-authored TSGLI claim statement, dated 18 February 2018 * statement by independent nurse reviewer, dated 19 February 2018 * SGLV 8600A (TSGLI Appeal Request Form), dated 20 February 2018 * AHRC, Special Compensation Branch, TSGLI Office letter, dated 29 October 2018 * statement by independent nurse reviewer, dated 3 December 2018 * Counsel’s letter, dated 4 December 2018 * SGLV 8600A, dated 4 December 2018 * letter from the Office of The Adjutant General, dated 13 January 2020 * Code of Federal Regulations (CFR), Title 38 * U.S. District Court, * U.S. District Court, * U.S. District Court * U.S. District Court, * U.S. District Court, * TSGLI Procedural Guide FACTS: 1. Counsel states: a. He and the applicant disagree with the decision to deny TSGLI benefits for 60 days of activities of daily living (ADL) losses caused by a traumatic injury. An error and an injustice have resulted in the denials to date. In review of the complete files and the reasons listed below, the applicant’s military record is proper and requested to allow $50,000.00 under the TSGLI, Schedule of Losses #20 for traumatic injury resulting in inability to perform at least two ADLs at the 60th consecutive day of at least two ADL losses. b. The applicant received all treatment through the and all medical records have been provided. There are no military treatment records. However, the recent decision denies the requested benefits due to a lack of ADL notes in nonexistent records. The decision only makes one reference to one note in medical records, but not a single reference to any other medical record, medical opinion, or the statement from the applicant. This demonstrates an inadequate review of the file. The denial was clearly issued without a review of all the evidence. Therefore, the decision is in error and unjust. 2. The applicant enlisted in the Army National Guard (ARNG) on 26 February 2010 and is still currently an ARNG unit member. 3. A DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he was ordered to active duty as a member of his ARNG unit on 25 May 2012 and served in Afghanistan from 7 July 2012 through 4 April 2013. He was honorably released from active duty after 11 months and 20 days on 14 May 2013, due to the completion of required active service and returned to his ARNG unit. 4. Numerous pages of medical records dated 17 May 2013 through 24 May 2013, show the following: a. The applicant was admitted to the hospital on 17 May 2013 subsequent to a motorcycle collision, traveling at 45-55 miles per hour with 20 feet of separation. He did not lose consciousness. He was admitted with complaints of left elbow pain and multiple abrasions. His pain was 8/10 on the pain scale. He did not have numbness or weakness in the extremities. He was brought into the hospital with a collar and back board. b. The applicant’s diagnoses upon admittance were as follows: * left open comminuted olecranon (elbow) fracture * anterior dislocation of the radial capitellar joint * intraarticular gas in the lateral condylar fracture * bilateral upper and lower extremity road rash * C1 on C2 facet articulations malalignment, which is likely chronic in nature * left knee laceration * alcohol intoxication c. On 17 May 2013, he underwent open reduction internal fixation (ORIF) with incision and drainage of his left elbow and was placed in a splint at 90 degrees. d. The applicant underwent consultation on 18 May 2013, subsequent to diagnosis with a spinous process fracture of T1, which is chronic. He stated he had a history of chronic neck pain stemming from an Iraq injury and had no increased pain, numbness or tingling in his upper extremities. His Aspen cervical collar was found to be intact. e. On 21 May 2013, the applicant underwent scrub and dermal abrasion of his 2nd degree burns and road rash, under conscious sedation. The motorcycle crash left him with extensive road rash over areas of the left leg 100 centimeters (cm) squared, left arm 150 cm square, and right arm 40 square cm. Once sedated, the areas were scrubbed vigorously with a scrub brush. The large area over his left knee was surgically debrided and dead tissue was cut away from the area. Aquacel (a hydro fiber wound dressing) was placed into his wound. f. On 22 May 2013, he underwent closure and washout of the left knee complex laceration. An attempt was made to debride the left knee the day prior under conscious sedation, which the applicant did not tolerate, and he was subsequently taken to the operating room (OR) for a washout and closure of his left knee. He tolerated the procedure well. g. The applicant was discharged on 24 May 2013, with the following discharge diagnoses: * left elbow fracture status post open reduction internal fixation and incision and drainage * bilateral upper extremity road rash abrasions * left knee laceration status post washout and closure * C1 on C2 facet articulation malalignment; this finding appears to be chronic in nature; there is no ligamentous injury on the magnetic resonance imaging (MRI) * alcohol intoxication, resolved h. At the time of discharge, on 24 May 2013, the applicant was awaiting receipt of a JAS brace, recommended for his use and was to return to Dr office for proper fitting of the brace once received. He was discharged to home in good condition. He could resume regular activities as tolerated. He was to follow-up in Burn Care on a daily basis for dressing checks and dressing changes to his right upper extremity with Silvadene (medication used to treat wound infections for burns). He was to be non-weight bearing (NWB) to his left upper extremity. His discharge medications included Percocet for pain, Colace for constipation, and Keflex, used to treat bacterial infections. 5. A letter from Orthopedic Specialists dated 12 June 2013, shows the applicant was seen on the date of the letter for his first post-operative visit after undergoing an ORIF of his left ulna and left lateral column of the humerus on 17 May 2013, subsequent to a motorcycle accident. The applicant presented stating his pain was 4/10. He had limited range of motion (ROM) to his left elbow and was asking for pain medication refills. 6. An Orthopaedic Specialists of prescription slip shows the applicant was prescribed Percocet on 12 June 2013. 7. Multiple pages of Physical Therapy notes show the following: a. His first physical therapy session for his left elbow was 27 June 2013 and the plan involved therapy 3 times per week therapy for 4 weeks. The initial evaluation on 27 June 2013 shows under ADL/Function Restriction that he had difficulty with ADLs and use of his left arm. His wain was at best 2/10 and at worst 5/10. The treatment goal was to improve ROM in the left elbow. His flexion was recorded as 95 degrees/102 degrees and extension at -57 degrees/-46 degrees. He utilized a JAS EZ static splint. b. His second session was on 3 July 2013 and reported no adverse reactions following his initial therapy session. An exercise program was initiated and performed as shown. He was to continue and progress as tolerated. c. On his 10 July 2013 visit, the applicant reported he though his left elbow had greater flexibility. His left elbow ROM is documented as flexion 124 degrees/130 degrees and extension -48 degrees/-40 degrees. He was to continue and progress as tolerated. d. On 12 July 2013, he reported increased left elbow flexibility. He appears to be responding to therapy. His flexibility was recorded as 127 degrees/136 and extension - 47 degrees/-35 degrees. e. On 7 August 2013, he reported increased flexibility in his left elbow. 8. A Vater Spine Physician’s Progress Report, dated 7 August 2013, shows the applicant was generally improved. He was to continue with physical therapy twice per week for 4 weeks and was released to restricted/modified duty on 7 August 2013. He was not to do push-ups or sit-ups. 9. A physical therapy discharge summary, dated 18 August 2013, shows the applicant did not return to therapy. His discharge prognosis was unknown due to his non- compliance. 10. The applicant’s initial SGLV 8600, Part B (Medical Professional’s Statement), dated 1 April 2017, signed by shows the doctor indicated the following: a. The applicant was involved in a motorcycle accident on 17 May 2013 and sustained a left olecranon (elbow) fracture requiring surgical intervention and resulting his inability to perform the ADLs of showering and dressing himself from 17 May 2013 through 30 July 2013 b. The applicant was unable to bathe independently and required physical assistance (hands-on) with bathing from 17 May 2013 through 30 July 2013. c. The applicant was unable to dress independently and required physical (hands- on) assistance with dressing from 17 May 2013 through 30 July 2013. d. The doctor did not treat the applicant for his losses, but reviewed his medical records. The medical records from were reviewed as well as telephone contact with the applicant was made. 11. The applicant’s initial SGLV 8600, Part A (Member’s Claim Information and Authorization), dated 18 April 2017 shows the applicant provided his personal information (name, address, email, phone number, bank account, etc.), but did not provide any information on the form about his traumatic injury. 12. A letter from AHRC, Special Compensation Branch, TSGLI office, dated 3 October 2017, informed the applicant of the following: a. The U.S. Army TSGLI Certifying Office evaluated his claim for traumatic injury protection benefits under the TSGLI and unfortunately, his claim for an event in on 17 May 2013 was not approved. b. His evaluated losses were ADLs other than traumatic brain injury (OTI) for up to 120 days. His claim for the inability to perform ADLs due to traumatic injury other than OTI was not approved because the medical documentation provided did not contain enough information to support that he could not perform ADLs independently. c. A majority of the supporting documentation submitted with his claim only covered the time period of his hospitalization, from 17 May 2013 through 24 May 2013, or 8 days. While some of the documentation provided with his claim did extend beyond this time, there was no evidence presented within the records that indicated he was rendered incapable of performing two or more ADLs for at least 30 consecutive days or greater. d. Under the regulations that govern the TSGLI program, evidence must demonstrate your inability to independently perform at least two of the sic ADLs (eating, bathing, dressing, toileting, transferring, and continence). To approve his claim, their office would need evidence addressing the specific injury/injuries he sustained as a result of the traumatic even and providing a timeline of treatment up to the first 120 days of recovery. The timeline of treatment would consist of notations from licensed medical providers such as physicians, physician assistants, nurse practitioners, registered nurses, etc. Supporting documentation can also be submitted by other medical providers acting within the scope of their practice pertinent to the sustained injury/injuries, to include occupational/physical therapists, audiologists, or speech/language pathologists. e. The applicant was advised of his right to appeal this decision and the requirements for the appeal. 13. A letter from AHRC, Special Compensation Branch, TSGLI office, dated 1 February 2018, informed the applicant’s representing Counsel that, per his request, all TSGLI documents pertaining to the applicant as well as decision letters from their office were provided to Counsel. 14. Counsel’s letter to AHRC, Special Compensation Branch, TSGLI office, dated 20 February 2018, was submitted as part of the applicant’s request for reconsideration of his TSGLI claim, and states the following: a. This letter is in reference to the applicant’s request for reconsideration of his denied claim for TSGLI benefits. I have been retained by him to seek benefits for a TSGLI claim for losses of ADL due to OTI for 60 days. They request that the TSGLI office evaluate all evidence submitted herein to support the applicant’s TSGLI claim for ADL losses. Servicemembers pay in to 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. b. Unfortunately, the government is the insurance policy holder of the 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 denials and to fully consider the totality of all evidence, which includes the prior file, a statement from the applicant, and a statement from RN. c. He has reviewed the medical records provided to me for the applicant, as they relate to traumatic injuries sustained in a motorcycle accident in on 17 May 2013. Review of the records confirms that on this date, the applicant was involved in a motorcycle accident in at a speed of about 45-55 mph, in which he sustained a fractured left elbow and severe road rash, as well as a complex laceration to the left knee. He was transported to Medical Center. Imaging studies showed an open comminuted dislocated fracture of the elbow joint. He underwent an I & D of the left elbow, ORIF of left ulna, and ORIF of left humerus that day. He was placed in a splint at 90 degrees, and ordered non-weight bearing (NWB) of the left arm. He was admitted to the burn center for treatment of extensive road rash. On 21 May, he had a scrub and dermal abrasion of second degree burns and road rash under conscious sedation. On 22 May, he was taken back to the operating room for I &D of the left knee with laceration closure. He was discharged home on 24 May 2013, to the care of his ex-girlfriend d. The applicant’s statement, obtained by telephone interview, is attached. He states that he would have been able to care for himself if the elbow fracture, and associated NWB status, was his only injury. Unfortunately, however, his recovery was complicated by the extensive road rash, burns, and laceration to his knee. Upon discharge, he was to report daily to Burn Care for daily dressing checks and dressing changes to his right upper extremity. He was awaiting a JAS splint to his left upper extremity, but it was delayed due to some confusion with his active-duty insurance. As he noted, this caused him a delay in therapy to his arm during a crucial period of recovery. He states he would not have been able to bathe or dress himself for two months without the assistance of . Sometimes, he needed help to even get out of bed in the morning. e. This statement is corroborated by documentation in the medical records. On 12 June 2013 (26 days’ post injury), he had his first post-op visit with Orthopedics. In the physician’s note, it is documented that he had limited range of motion to his left elbow. He was referred to physical therapy. On 27 June 2013 (41 days’ post injury), his initial PT evaluation noted “cannot use his L UE. Difficulty with ADLs.” The PT plan was documented as 3 sessions per week for 4 weeks, with a goal to increase ROM and function of the left elbow. It appears that this therapy continued until 7 August 2013 (82 days’ post injury), while his road rash and burns were still healing. It is reasonable to conclude that it would have taken the first 3 weeks of therapy until he was able to use his arm for ADLs and care for the other healing wounds. f. Based on the nature and extent of his injuries, the treatments required, the NWB status of his left arm, and the documentation in the records, it is his professional opinion that the applicant would have been unable to independently bathe or dress for at least 60 days after his accident. His statement that he required the assistance of for these ADLs, and sometimes even to get out of bed during this timeframe, is credible and consistent with the records. Here, the applicant required physical assistance with bathing, dressing, and transferring. Of the three combinations of assistance provided, only two are required for the benefits to be issued. It must also be noted and recognized that the TSGLI Application and Procedures Guide have minimal requirements for the ADL tasks that require assistance: * he/she requires assistance from another person to bathe (including sponge bath) more than one part of the body OR get in or out of the tub OR shower. * he/she requires assistance from another person to get and put on clothing, socks OR shoes. * he/she requires assistance from another person to move into OR out of a bed OR chair. See TSGLI Application and TSGLI Procedures Guide, emphasis added g. It should also be noted that the TSGLI office must work only within the guidelines of Title 38 CFR., 9.20 and, it should be noted that TSGLI program benefits are administered by the Secretary of the Veterans Affairs, so Title 38 USC, section 5107(b) is fully applicable to TSGLI benefit determinations. As such, the standard applicable in this case is of “substantial evidence”, meaning: “[w]hen there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.” 38 U.S.C. § 5107(b); see also The referenced cases along with the applicable statutory law are attached. h. As explained this statutorily mandated benefit of the doubt “is of particular importance” in reviewing the denial of TSGLI program benefits. . This is because the required benefit of the doubt alters the standard of proof that the claimant must meet, necessarily reducing it from “preponderance of the evidence” to a lesser “substantial evidence” standard: i. Because the claimant is entitled to the “benefit of the doubt” whenever the evidence is in equipoise, section 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 section 5107(b) meaningless. Requiring the claimant to prove his claim “to be more likely true than not true,” contradicts the careful balance established in section 5107(b), under which all matters on which the evidence is in “approximate balance” goes to the claimant. The burden of proof established by section 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 very matter on which the evidence is in “approximate balance.”. j. The practical consequence is a shift in the burden from the Plaintiff to the TSGLI Office: “. . . once the claimant proves at least on ‘approximate balance’ in the evidence, the burden shifts to the Secretary to show by preponderance of the evidence [that coverage does not apply]. Ties go to the plaintiff.” . As the court further explains: Westlaw’s treatise on Federal Procedure provides a helpful discussion on the review of the application of 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, k. The attached exhibits, medical records, and other supporting evidence demonstrate Mr. Cline is entitled to a recovery of $50,000.00 under the Traumatic Service Members Group Life Insurance Schedule of Losses #20; “Traumatic injury resulting in inability to perform at least 2 Activities of Daily Living (ADL) at the 60th consecutive day of ADL loss.” Therefore, on behalf of the applicant, he respectfully requested $50,000.00 to be issued. 15. Along with Counsel’s letter, the 20 February 2018 TSGLI appeal included the following: * SGLV 8600, Part A, dated 8 January 2018 * applicant’s TSGLI claim statement, dated 18 February 2018 * independent nurse reviewer, statement, dated 19 February 2018 * SGLV 8600, Part B, signed by RN, dated 19 February 2018 * SGLV 8600A, dated 20 February 2018 16. An SGLV 8600, Part A, dated 8 January 2018, shows in the narrative about the traumatic injury that the applicant lost control of his motorcycle in Las Vegas, Nevada on 18 May 2013. He suffered from a shattered left elbow, road rash on the left side of his body, left knee injury and other traumatic injuries. 17. The applicant’s TSGLI claim statement, dated 18 February 2018, states: a. On 17 May 2013, he was involved in a motorcycle accident in . He fractured my left elbow, and had a large laceration to the left knee. He also had severe road rash and burns. He was in the hospital until 24 May 2013. When he was discharged to home, he thinks the left elbow injury alone would have been manageable, but since he had all the burns associated with it, and the road rash, any simple movements were hard. He was able to move around with pain killers, but it was very hard in the morning. Sometimes he needed help to get up and move around. Everything was very stiff. Taking a shower was almost impossible, because he would have to have dressings on and cover up all the bandages that they still had on from his burns. b. He couldn’t do that one handed. My ex-girlfriend had to cover everything with tape and plastic. Then, he couldn’t reach most of the parts of my body to wash, his back or anything like that, or he couldn’t bend over because he had the surgery on his knee. He couldn’t wash my feet. He couldn’t get clothes on or off one-handed as well. He couldn’t tie my shoes, or bend my knees to get pants on. Because his arm was in a cast, he needed her help to get shirts on. He couldn’t do anything really. His left arm was completely atrophied, and he had to do exercises even to get it to extend. He didn’t get the device for my arm for about 1 1/2 weeks because of a delay with the insurance, and so he missed a crucial period of time for having it and getting mobility back in that joint. This all went on for about 2 months after he got back home. It took a while for everything to heal up. He felt kind of helpless. 18. The statement from independent nurse reviewer, dated 19 February 2018, states: a. She reviewed the medical records provided to for the applicant, as they relate to traumatic injuries sustained in a motorcycle accident in on 17 May 2013. Review of the records confirms that on this date, the applicant was involved in a motorcycle accident in at a speed of about 45-55 mph, in which he sustained a fractured left elbow and severe road rash, as well as a complex laceration to the left knee. He was transported to. Imaging studies showed an open comminuted dislocated fracture of the elbow joint. He underwent an I & D of the left elbow, ORIF of left ulna, and ORIF of left humerus that day. He was placed in a splint at 90 degrees, and ordered non-weight bearing of the left arm. He was admitted to the burn center for treatment of extensive road rash. On 21 May, he had a scrub and dermal abrasion of 2nd degree burns and road rash under conscious sedation. On 22 May, he was taken back to the operating room for I &D of the left knee with laceration closure. He was discharged home on 24 May, to the care of his ex- girlfriend b. The applicant’s statement, obtained by telephone interview, is attached. He states that he would have been able to care for himself if the elbow fracture, and associated NWB status, was his only injury. Unfortunately, however, his recovery was complicated by the extensive road rash, burns, and laceration to his knee. Upon discharge, he was to report daily to Burn Care for daily dressing checks and dressing changes to his right upper extremity. He was awaiting a JAS splint to his left upper extremity, but it was delayed due to some confusion with his active-duty insurance. As he noted, this caused him a delay in therapy to his arm during a crucial period of recovery. He states he would not have been able to bathe or dress himself for two months without the assistance of. Sometimes, he needed help to even get out of bed in the morning. c. This statement is corroborated by documentation in the medical records. On 12 June 2013 (26 days’ post injury), he had his first post-op visit with Orthopedics. In the physician’s note, it is documented that he had limited range of motion to his left elbow. He was referred to physical therapy. On June 27, 2013 (41 days’ post injury), his initial PT evaluation noted “cannot use his L UE. Difficulty with ADLs.” The PT plan was documented as 3 sessions per week for 4 weeks, with a goal to increase ROM and function of the left elbow. It appears that this therapy continued until 7 August (82 days’ post injury), while his road rash and burns were still healing. It is reasonable to conclude that it would have taken the first 3 weeks of therapy until he was able to use his arm for ADLs and care for the other healing wounds. d. Based on the nature and extent of his injuries, the treatments required, the NWB status of his left arm, and the documentation in the records, it is her professional opinion that the applicant would have been unable to independently bathe or dress for at least 60 days after his accident. His statement that he required the assistance of his girlfriend for these ADLs, and sometimes even to get out of bed during this timeframe, is credible and consistent with the records. 19. An SGLV 8600, Part B, signed by RN, dated 19 February 2018, shows: a. The applicant was involved in another traumatic injury which was the predominant reason he was unable to independently perform ADLs. He was involved in a motorcycle accident on 17 May 2013 and sustained a fracture to the left olecranon, requiring surgical intervention. Additionally, he had extensive road rash over both arms and legs and a severe left knee laceration which also required surgery. He was NWB with his left arm and required dressings to the road rash and burns on his legs and the laceration of his knee. He was unable to shower and dress himself due to the extent of his injuries, the need for dressings, and the NWB status of his left arm. b. The applicant was unable to bathe independently from 17 May 2013 through 16 July 2013. He required physical assistance (hands-on) covering his dressings before showering and washing his back, feet, and right side. c. The applicant was unable to dress independently from 17 May 2013 through 16 July 2013. He required physical assistance (hands-on) to get his pants on over his dressings, pull shirts on with NWB left arm, and tie his shoes. d. The applicant was unable to transfer independently from 17 May 2013 through 16 July 2013. He often required physical assistance (hands-on) in the mornings to transfer from his bed to standing because he was so stiff. e. The extensive road rash and burns to his legs, as well as the left knee laceration complicated the applicant’s ability to perform ADL in addition to the NWB status of his left arm. His treatment of the arm was also delayed due to insurance issues with obtaining the JAS splint. Physical therapy was started 1 month after his hospital discharge to help decrease his difficulty with ADLs and was continued for at least 4 weeks. f. The medical professional did not treat the applicant for his loss but reviewed his medical records. 20. An SGLV 8600A, dated 20 February 2018, contains the applicant’s personal information and describes the new evidence provided as a statement from the applicant and a statement from 21. An AHRC, Special Compensation Branch, TSGLI office letter, dated 29 October 2018 informed the applicant and his representing Counsel of the following: a. The Army TSGLI Certifying Office evaluated the applicant’s claim for Traumatic Injury Protection benefits under TSGLI. Unfortunately, his claim for his event in on 17 May 2013, was not approved. His evaluated losses were ADLs, OTI, up to 60 days. b. His claim for the inability to perform ADLs due to OTI was not approved because the medical documentation provided with his claim did not contain enough information to support that he could not perform ADLs independently. The documentation available for review does not adequately document his functional status at the 30-day milestone following his injury. c. The timeline of treatment would consist of notations from licensed medical providers such as physicians, physician assistants, nurse practitioners, registered nurses, et. Supporting documentation can also be submitted by other medical providers acting within the scope of their practice pertinent to the sustained injuries, to include occupational/physical therapists, audiologists, or speech/language pathologists. d. The applicant was advised of his right to appeal this decision within 1 year of the date of this letter. 22. Counsel responded to the AHRC, Special Compensation Branch, TSGLI office via letter, dated 4 December 2018, stating: a. This letter is regarding the applicant’s appeal of his denied request for reconsideration of his denied claim for TSGLI benefits. Enclosed is another Proof and Acknowledgement of Representation, Unlimited Authorization for Procurement of All Records, Exclusive Assignment of Rights, and Power of Attorney along with a new TSGLI Appeal Request Form. b. He and the applicant disagree with the 29 October 2018 decision. As such, they again request that TSGLI review the claim de novo and evaluate all medical, legal, and lay evidence previously submitted, as well as the new and material evidence submitted herein. c. In support of this appeal, the prior file is attached which includes the governing law, medical opinions, and medical records that provide proof of the claimed losses. Further, as new and material evidence that warrants reconsideration of this claim, a statement from RN. The new medical opinion is more supportive of 30 days than 60 days of ADL losses, however, 60 days is not ruled out and two other medical opinions on file support 60 days of ADL losses. d. Additionally, in further review of this appeal, and in light of these statements, he would like the TSGLI office to consider the binding court decisions on the TSGLI administrative process. One original lawsuit considered eight denied claims under the strict and deferential standard to the government of “arbitrary and capricious.” In this case, two claims were deemed to have been denied in an arbitrary and capricious manner, while the Army TSGLI office was given the benefit of the doubt on the remaining six claims. Please note that on the claims not overturned, the court did not disagree with the decisions, the court simply found the decisions were not made in an arbitrary and capricious manner. Also, more recently, in three other separate cases, the court ruled in favor of the three claimants and against the Army TSGLI office in ADL claims – e. In the applicant’s claim, the medical records suggest that he suffered traumatic injuries that would require assistance with his activities of daily living for over 60 days. In addition, the requirement for ADL assistance was provided in his declaration as well as the declarations of his caregiver. For this appeal, per judicial order, these statements must be given proper consideration for the reasons discussed below. f. s wife’s statement is enough to permit the conclusion that is qualified for benefits. This is not a situation where a medical provider has offered a post hoc opinion that, in general, patients who undergo a particular procedure will be precluded from performing certain ADLs for a specified period of time. The Army appears to routinely discount such opinions unless specifically corroborated in the record, and, as discussed above, this Court cannot say that such a practice is necessarily improper. However, wife’s statement is more than a post hoc opinion based on general patterns; it is a statement from a percipient witness about the specific limitations that actually experienced. Although the statement is somewhat stilted, conclusory, and ambiguous, never quite articulating what the phrase “maximum help” means, it is nevertheless clear and unrebutted evidence that Mr. indeed employed human assistance to perform the various ADLs during the 60-day time period set forth in the statement. The Army either failed to consider this evidence or simply discounted it without explanation, either of which would clearly be arbitrary and capricious action. Because there is no evidence in the record that disputes wife’s first-hand account of the assistance she provided to him and the duration of that assistance, the Court further finds that the Army’s determination that did not satisfy the requirements of TSGLI eligibility during the period of 7 April 2010 to 7 June 2010 was also arbitrary and capricious. g. The medical record regarding is quite limited. There are several handwritten doctor’s notes from follow-up consultations, but the handwriting is illegible or the comments so cursory as to be unenlightening. At best, there is an indication on 4 March 2002 that is “doing well” with a decrease in pain reported, such that his physician saw fit to prescribe the beginning of a physical therapy regimen, but nothing else in the record elaborates on the course of recovery. In such circumstances, as with the unrebutted statement from wife is dispositive. Although own doctors do not comment upon his need for assistance in ADLs, they do not refute that such assistance is necessary either; the record is simply silent on that point. Unlike situation, the Court sees nothing in medical records that affirmatively disputes the representations as to the type or duration of assistance that wife claims to have provided. Thus, Mr. wife’s statement stands unrebutted and serves as conclusive proof that did indeed require the assistance described. h. Similar issues of focusing on selective evidence, disregarding statements, and not focusing on the totality of evidence can also be found in the other provided decisions. He asks that these decisions be reviewed and the guidance from the court be applied since, like the Plaintiffs, the applicant’s medical records cannot cover every type of ADL limitation for every day in question. i. Also, like the cases above, the medical records do not deny the ability of ADL assistance. They do, however, suggest the requirement of ADL assistance, and this requirement for ADL assistance is confirmed by the statements. The statements specifically explain how the ADL assistance was provided, and how the applicant was dependent on assistance and could not perform his ADLs independently. There are no medical records that refute the statements. There are, however, medical opinions that support this position. j. The attached exhibits, medical records, and other supporting evidence demonstrate the applicant is entitled to a recovery of $50,000.00 under the TSGLI Schedule of Losses #20; “Traumatic injury resulting in inability to perform at least 2 ADLs at the 60th consecutive day of ADL loss” Therefore, on behalf of the applicant, he respectfully requested $50,000.00 to be issued. 23. An SGLV 8600A, dated 4 December 2018, provides the applicant’s personal information and lists the new medical evidence provided in support of his loss, namely the statement from 24. Independent nurse reviewer statement, dated 3 December 2018, includes the following: a. She reviewed the medical records and documentation provided to her for the applicant as they relate to traumatic injuries suffered on 17 May 2013. To reiterate, in the applicant suffered multiple injuries after being involved in a serious motorcycle accident. Injuries included open comminuted dislocated fracture of the left elbow, left leg laceration with extensive road rash to both arms and legs. He was admitted to the. Immediate ORIF surgery was performed on the left ulna and humerus. Postoperatively, his left elbow was splinted at 90 degrees with strict non-weight bearing orders. On 21 May 2013, scrub and dermal abrasion of his 2nd degree burns and road rash was performed with conscious sedation in the OR. On 22 May 2013, he was returned to the OR for left knee washout and closure due to a non-healing wound. This procedure was attempted earlier under conscious sedation; however, the applicant was unable to tolerate the procedure and he was taken to the OR for anesthesia. On 24 May 2013, he was discharged home to the care of his girlfriend, with orders to return to the Burn Center for daily dressing changes. b. The applicant has previously applied for TSGLI benefits for OTI ADL losses due to his injuries. On 29 October 2018, the Special Compensation Branch (TSGLI) issued a denial letter stating, “OTI-ADL Loss: Your claim for the inability to perform activities of daily living (ADLs) due to traumatic injury (other than traumatic brain injury) was not approved because the medical documentation provided with your claim did not contain enough information to support that you could not perform ADLs independently. The documentation available for review does not adequately document your functional status at the 30-day milestone following your injury”. They disagree with the decision by TSGLI to deny the applicant his benefits for 60 days of OTI ADL losses. The following evidence further supports his inability to perform ADL tasks of bathing and dressing following his injuries sustained on 17 May 2013. c. The applicant suffered multiple severe injuries as a result of his motorcycle accident, his most serious injuries being his open left elbow fracture, large deep left knee laceration, and extensive road rash burns on his arms and left leg. Road rash, like burn injuries, range in severity from mild (first degree) to moderate (second degree) to severe (third degree). First degree road rash is a minor scrape similar to a sunburn. Second degree road rash occurs when the skin is broken and involves multiple layers of skin. Debris, such as gravel, dirt, or rocks can become embedded in the wound which may also cause infection. Third degree road rash involves all five layers of the skin. Fat, tissue, muscle, and/or bone may be visible. Second and third degree road rash burns are the most painful and are more likely to leave permanent scars. First degree does not produce scarring. The applicant’s road rash on both of his arms and left leg were rated as second degree burn road rash. d. To further complicate the applicant’s recovery, he had very large areas of road rash. The dimensions of his road rash areas were described by Surgeon, in the operative report dated 21 May 2013 as follows: “Preop/Postop Diagnosis: Status post motorcycle crash with extensive road rash over areas of the left leg 25 x 4 or 100 centimeters squared, left arm 150 centimeters square, right arm 40 square centimeters for a total of 290 square centimeters”. That computes to 1) Left leg: 15.5 square inches 2) Left arm: 23.25 square inches 3) Right arm: 45 square inches. also stated in his operative note, “Indications for surgery: This is a 21-year-old male who came into the trauma bay after a motorcycle with extensive road rash throughout his body”. His left knee road rash was described as follows, “There was a large area over his left knee which was deep…After the dermal abrasion, the tattooing and road rash and particular matter was absent from the vast majority of the wound allowing us to place Aquacel into this wound now as opposed to Silvadene. The patient will likely need some more deep debridement of this right (sic) knee that will likely have to be under local anesthetic or perhaps a general anesthetic”. Aquacel is a special dressing which includes an absorbent lining for wound drainage. His road rash burn areas were treated with Aquacel and Silvadene with sterile dressings. During a recent telephonic interview with the applicant, he stated that he now has permanent scarring on his left arm from his mid-forearm which wraps around his elbow. His tattoo in that area is now gone and replaced with scar tissue. He also has scarring from the road rash and laceration on his left knee. e. In addition to extensive road rash burns, he suffered an open comminuted fracture of the left olecranon joint with 15mm displacement. Complex ORIF surgery on the day of his accident included irrigation and debridement and ORIF for stabilization. Surgeon, noted, “extensive soft tissue maceration and laceration”. also stated in his operative report, “The wound revealed extensive bone fragmentation and splinters”. Postoperatively, his left arm was positioned at a 90-degree angle and splinted. He was ordered non-weight bearing until starting physical therapy which was not started until 41 days’ post injury. At the initial physical therapy evaluation dated 27 June 2013, physical therapist noted, “Cannot use his L UE”. f. From 17 May 2013 through 16 July 2013, the applicant was unable to independently perform ADLs, to include bathing and dressing. The road rash on his arms and left leg with the large left knee laceration caused severe pain with any type of movement. He could not tolerate anything touching his arms or left leg as it caused high levels of pain. He could not wash his back, left side, or feet without assistance. Simply donning a shirt or pair of pants could not be performed. He could not bend his left knee due to pain and stiffness from the road rash/laceration. This, in addition, to his left elbow joint fracture with post-op immobilization and non-weight bearing orders impaired his ability to perform even these most basic ADL tasks. His girlfriend at the time, provided the ADL assistance required. g. It is her professional opinion after reviewing the medical records, statement from the applicant, and the TSGLI claim certifying 60 days of ADL losses to include a Nurse Statement by MSN, RNBC, it is clear that the applicant was unable to bathe and dress himself during the first 30 days without physical assistance to meet the minimum TSGLI guidelines for OTI ADL losses. During the second month of his recovery, he likely required some physical assistance with standby assistance. However, it is with an honest degree of certainty that he required ADL assistance for the first 30 days following his serious motorcycle accident based on the number and severity of his injuries, postop/wound recovery, and physical limitations. 25. A letter from the Office of the Adjutant General, dated 13 January 2020, states: a. The Army TSGLI program office received the applicant’s appeal request and after reviewing the claim and supporting documentation was unable to overturn the previous adjudication concerning losses associated with ADLs from the traumatic event on 17 May 2013. b. For determining if a member has a loss of TSGLI program specific ADLs, the federal Regulation 38 CFR, 9.20 states, “the term inability to carry out activities of daily living means the inability to independently perform at least two of the six following functions: (A) Bathing, (B) Continence, (C) Dressing, (D) Eating, (E) Toileting, (F) Transferring in or out of a bed or chair with or without equipment.” The TSGLI Procedural Guide further clarifies, “if the patient is able to perform the activity by using accommodating equipment [such as a cane, walker, commode, etc.] or adaptive behavior, the patient is considered able to independently perform the activity.” c. The applicant claimed loss of three ADLs (inability to bathe, dress, and transfer) for 60 days. The injuries the applicant sustained on 17 May 2013, could have resulted in the inability to perform the three ADLs that could not be overcome by adopting adaptive behaviors or using accommodating equipment. However, based on the documentation reviewed, there is no objective date to support or deny the claimed loss. The applicant’s outpatient care notes for the first 30 days after the hospital discharge, specifically the burn clinic notes, were not provided by him for review. Although the physical therapy note dated 27 June 2013 noted “difficulty with ADLs,” the inability to bathe, dress, and/or transfer was not specified. Because of these discrepancies, there is no definitive proof that he qualified for ADL loss payment at the 30-day milestone or beyond. d. The applicant was informed of his right to apply to the ABCMR if he disagrees with this decision. 26. Based on the applicant’s condition the ARBA medical staff provided a medical review for the Board members. See ?MEDICAL REVIEW? section. MEDICAL REVIEW: 1. The Army Review Boards Agency (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 Traumatic Servicemember’s Group Life Insurance (TSGLI) program. He claims to have been unable to independently perform the three activities of daily living (ADLs) of dressing, transferring from bed to/from a chair, and bathing, with or without modification and/or assistive devices, for more than 60 consecutive following his traumatic injury on 17 May 2013. 3. The Record of Proceedings (ROP) details the circumstances of the case and the previous denials. The applicant’s DD 214 shows the former Guardsman was activated on 25 May 2012 and released from active duty at the completion of his required active service on 14 May 2013. To date, the applicant has not received any payment from TSLGI for this incident. 4. The applicant was injured in a single vehicle motor cycle accident the on 17 May 2013. He sustained an open fracture dislocation of the left elbow, a laceration over his left knee, and several areas of road rash. He was taken to the operating room that afternoon where he underwent surgical reduction and stabilization of the left elbow injuries. The laceration over his knee was taken to the operating room on 21 May 2013 for a second debridement and closure. The applicant was discharged from the hospital on 24 May 2013. 5. The TSLGI Procedures Guides states a claimant for TSLGI is considered unable to perform an activity independently only if he or she, with or without activity modification and/or assistive devices, requires at least one of the following without which they would be incapable of performing the task: a. Physical assistance (hands-on) or, b. Stand-by assistance (within arm's reach) or, c. Verbal assistance (must be instructed) 6. TSGLI Procedures Guide states that when a claimant is able to perform the activity by the use of accommodating equipment/adaptive measures (such as a PDA {personal digital assistant}, cane, crutches, wheelchair, etc.) then the claimant is considered able to independently perform the activity. The guide also requires the claim be supported my medical documentation “indicating the member’s loss met the minimum TSGLI standard.” 7. There is limited medical documentation for the period following his hospitalization, and no medical evidence to support the applicant’s claim. At an initial physical therapy evaluation on 27 June 2013 (41 days after the traumatic event), the therapist noted the applicant “cannot use his LUE {left upper extremity}. Difficulty with ADLs.” However, difficulty with an ADL does not equal the inability to perform an ADL. 8. While the applicant certainly sustained and injury to his left upper extremity, his remaining extremities remained functional in the young and this otherwise healthy Soldier; and there is no medical documentation supporting the claim that he was unable to independently perform two or more ADLs past the 29th day following his injury. 9. As noted above, the applicant was released from active duty on 14 May 2013. In contrast to SGLI, TSGLI coverage ends on the day the service member separates from service. A drilling member in a reserve component is covered under part-time TSGLI, which covers the service member only during the actual days of duty and while proceeding directly to and returning directly from their scheduled duty. 10. The applicant’s NGB Form 23A or “points statement” shows 19 periods of Inactive Duty Training (IDT), or 9.5 days of active service between 17 May 2013 and 25 February 2014 (his anniversary year ending date). Review of records in iPERMS found no evidence the applicant was on orders or in a qualified duty status as the time of the injury. In addition to no medical evidence to support his claim, his lack of being in a qualified duty status made him ineligible for a TSGLI claim. 11. Under the TSLGI application signature block signed by representing council: WARNING: Any intentional false statement in this claim or willful misrepresentation relative thereto is subject to punishment by a fine of not more than $10,000 or imprisonment of not more than 5 years, or both. (18 U.S.C. 1001). Given no evidence to the contrary, the TSLGI application misrepresents the applicant’s eligibly for filing a claim. 12. Based on the information currently available, it is the opinion of the Agency Medical Advisor that there is no medical documentation supporting nor is there a legal basis for a TSGLI payment. BOARD DISCUSSION: 1. After reviewing the application and all supporting documents, the Board found that relief was not warranted. Board members went over the applicant's injury: He was injured in a single vehicle motor cycle accident the on 17 May 2013; and he sustained an open fracture dislocation of the left elbow, a laceration over his left knee, and several areas of road rash. He was taken to the operating room that afternoon where he underwent surgical reduction and stabilization of the left elbow injuries. The laceration over his knee was taken to the operating room on 21 May 2013 for a second debridement and closure. He was discharged from the hospital on 24 May 2013. Board members agreed that while he sustained and injury to his left upper extremity, his remaining extremities remained functional in the young and this otherwise healthy Soldier; and there is no medical documentation supporting the claim that he was unable to independently perform two or more ADLs past the 29th day following his injury. After reviewing all the available evidence, and based on the information currently available, Board members determined there was insufficient evidence to support a TSGLI payment and voted to deny his request. 2. The Board also carefully considered the applicant's request for a personal appearance hearing. In this case, the evidence of record was sufficient to render a fair and equitable decision. As a result, a personal appearance hearing is not necessary to serve the interest of equity and justice in this case. 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, and coma from traumatic injury and/or traumatic brain injury resulting in the inability to perform 2 Activities of Daily Living (ADLs). 4. Part II losses include traumatic injuries resulting in the inability to perform at least two ADL 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 ADL, which are dressing, bathing, toileting, eating, continence, and transferring. TSGLI claims may be filed for loss of ADL if the claimant is required 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. d. Limb Salvage: A series of operations designed to save an arm or leg rather than amputate. 6. 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. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director of the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200004690 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1