IN THE CASE OF: BOARD DATE: 16 June 2021 DOCKET NUMBER: AR20200007550 APPLICANT REQUESTS: through Counsel, correction of his military records to show his entitlement to payments totaling $50,000.00 for a denied Traumatic Servicemembers' Group Life Insurance (TSGLI) claim for a traumatic brain injury (TBI) and a personal appearance before the Board. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: •DD Form 149 (Application for Correction of Military Record) •Power of Attorney •2300+ pages of medical, reference and TSGLI claim documents FACTS: 1.Counsel states: a.He and his client and disagree with the decision to deny TSGLI benefits for 30 days of activities of daily living (ADL) losses due to TBI. An error and an injustice have resulted in the denials to date. In review of the complete file and the reasons below, a correction to the applicant's military record to allow $50.000.00 is requested under the TSGLI policy for Schedule of Losses number 17. In this matter, multiple medical providers have linked the applicant's stroke and resulting ADL losses to the vehicle accident at issue. In the most recent decision, the reviewer's reliance on other risk factors is outweighed by the other medical professional opinions that attribute the stroke to the vehicle accident and no other cause. b. Dr. , stated in part, he reviewed the applicant's risk factors for stroke but he discussed that in the current setting of the recent trauma with a severe whiplash injury as discussed in his narrative history this is most probably the likely cause of stroke which caused a rupture of the right vertebral artery with complete opacification because of thrombus formation that compromises circulation to the right cerebellum and caused him to have the infarct with subsequent neurological findings. He provided articles which show how strokes can happen in settings of accident or chiropractic manipulation whereby the vertebral basilar artery system could be compromised. The applicant's case fits into the situation. He understood the applicant had also had other risk factors for stroke; however, given the fact he had a posterior circulation stroke compromising only the right vertebral artery which possibly underwent a rupture at the time of the accident and then had opacification because of thrombus contributed to this unusual stroke in this young person. The weight of this opinion and all other evidence is greater than the post-hoc review provided in the 18 December 2019 decision. In terms of ADL losses, the impairments of TBI and ADL loss standards due to TBI were insufficiently considered. 2.The applicant enlisted in the Army National Guard on 23 December 1997. 3.The applicant was ordered to active duty in support of Operation Enduring Freedom (OEF). He served on active duty from 23 January 2004 to 21 January 2005 and from 1 October 2005 to 31 August 2009. 4.On 27 June 2014, an informal physical evaluation board (PEB) found the applicant unfit due to right shoulder degenerative joint disease and sprain. The PEB recommended a 10-percent disability rating and separation with severance pay. 5.On 7 July 2014, the applicant concurred with the PEB's findings and recommendations and waived a formal hearing of his case. He did not request reconsideration of his Department of Veteran Affairs (VA) ratings. He further elected to be transferred to the Retired Reserve in lieu of being separated for disability with entitlement to disability severance pay or in lieu of being separated without entitlement to disability benefits. 6.Orders 209-1002, issued by Joint Forces Headquarters Indiana, dated 28 July 2014,show the applicant was assigned to the Retired Reserve effective 31 July 2014. 7.On 29 November 2017, counsel completed an Application for TSGLI Benefits onbehalf of the applicant. The application states: a.On 22 April 2014, the applicant was injured motor vehicle accident (MVA). Initially, he had no symptoms; however, two weeks later, he began to experience nausea with vomiting and severe vertigo. He was admitted to the hospital after being diagnosed with an acute cerebellar right posterior vertebral artery stroke secondary to TBI from the MVA. He could not stand or walk without assistance. He was at a high risk for falls. On 7 May 2014, he was discharged home to the care of his wife, who assisted him with ADLs of bathing, dressing, toileting, and transferring for the next 30 days. He was given 30 days of convalescent leave which was later extended another 2 months. b. Independent Nurse Reviewer, Dr. , indicated the applicant suffered a profound stroke from TBI causing symptoms of severe vertigo and motor weakness affecting his gait/balance and motor function of both legs and right arm. He could not perform the ADLs of bathing, dressing, toileting, and transferring from 4 May 2014 to 5 June 2014 (30 days). He was given 30 days of convalescent leave which was later extended another 2 months. c.The document was signed by the Independent Nurse Reviewer on 29 November 2017, attesting she had not treated the applicant for his loss, but had reviewed the applicant's medical records. 8.In support of the claim counsel provided:a.An opinion letter from Independent Nurse Reviewer , which states, in part, review of the records confirms the applicant suffered injuries following a motor vehicle accident in which he was rear ended at a speed of approximately 45-50 mph by a driver who was texting. The applicant was not transported to the hospital as he was not having any symptoms at the time of the accident. About 2 weeks he started to have vertigo and vomiting. Medical professionals documented physical exam findings and the assistance medically required throughout his therapy. On 6 May 2014, during physical therapy, the applicant was noted to be "diaphoretic with activity. Had to lie supine…Loss of balance Right and posterior". He required “contact guard assist" (CGA) with transfer from chair to bed and with gait mobility. His wife was "trained in gait belt" assist. At the time of hospital discharge on 7 May 2014, physical therapy noted that he still required CGA while walking and that he "still has high lev". Discharge recommendations were "home with family assist". During a follow up visit on 20 May 2014, IUH Morgan Hospital Rehabilitation Services noted on the Stroke Impact Scale, "No Recovery; mobility 1-20%". On the patient questionnaire, the applicant indicated that he could not stay standing without losing his balance. During a follow up visit with Dr. on 28 May 2014, it is noted, "symptoms include ataxia (cerebellar stroke). Motor deficits are noted in the left arm and right arm. Sensory deficit on the left leg; Romberg sign is positive". The applicant was discharged from physical therapy on 18 June 2014. On 29 July 2014, IUH Morgan Hospital Rehabilitation Services noted on the Stroke Impact Scale, "Stroke Recovery: 20%". On 26 August 2014, IUH Morgan Hospital Rehabilitation Services noted a "90% stroke recovery" on the Stroke Impact Scale. It was her professional opinion that the applicant met the minimum TSGLI guidelines for ADL losses due to stroke secondary to TBI for the 1st and 2nd ADL milestones. The complete letter is available for the board's review and consideration. b.In a statement from the applicant he states in part, on 22 April 2014, he wasinjured in a car accident. The girl behind him was on her cell phone and was texting. She didn’t stop. She just ran into him. He didn’t have any symptoms until about 2 weeks later. He started to feel nauseous and dizzy. He laid down and it progressively got worse from there. He thought it would go away so he waited until Sunday evening and had his wife take him to the hospital. When he was at the hospital, he was told he had a stroke. He didn’t know it was caused by the car wreck until he got to the main hospital. The specialist at the hospital told him the stroke was caused by the car accident. On 7 May 2014, he was discharged home from the hospital. His wife took care of him. When it was all said and done, h had to learn how to walk again. He lost all of his motor skills and balance in his legs because it was in the cerebral part of his brain. He needed help going to and from the bathroom, and taking showers. He could still eat and all that because his upper body was not as affected. His short term memory was gone. He was off of work for 3 months. His left leg has permanent nerve damage. During that first month after his stroke, he could not go to or from the bathroom, bathed, dress, or get around without the assistance from his wife. The applicant's complete statement is available for the board's review and consideration. c.A letter from the applicant's wife corroborating the applicant's statement that she had to provided assistance to him for a month after his stroke. She further stated the applicant he ended up back in the emergency room a couple of days after he was released from the hospital because he couldn’t feel anything in his face. They were told it was delayed reaction or something like that. The doctors told them that in about a year and a half the nerves would re-route itself. The first 3 months after his stroke it was really bad. The applicant would not have been able to bathe, dress, toilet, or transfer had she not been there to care for him. The applicant's wife statement is available for the board's review and consideration. 9.On 1 May 2018, counsel's TSGLI claim on behalf of the applicant was not approved because his loss was the result of a stroke. Additionally, the documents available for review did not support his stroke was the direct result of a TBI stemming from his claimed vehicle accident. The applicant was informed he had the right to appeal within one year of the letter.10.On 21 May 2018, counsel submitted a request for reconsideration and provided an opinion letter from Independent Nurse Reviewer , which states, in part, she had reviewed the statements of the applicant, his wife and the opinion letter of Independent Nurse Reviewer and concluded based on the nature of the applicant's injury, and the resulting documentation in the medical records, especially the issues of balance and safety, it is more than reasonable to conclude that the statements of the applicant and his wife are accurate and credible. She agrees with the opinion of , that the applicant required physical and standby assistance with ADLs of transferring, bathing, dressing, and toileting for at least 30 days due to his whiplash-induced TBI. Furthermore, she agrees there is a clear connection between the injury and the applicant's stroke. As a cardiovascular nurse of many years, it's her opinion that it is highly unlikely to see a thrombotic stroke at his age due to a non-traumatic cause, in theabsence of significant cardiac disease or arrhythmias. The complete letter is available for the board's review and consideration. 11.On 9 September 2018, counsel's appeal of the TSGLI claim on behalf of the applicant was denied because the medical documentation he provided with is claim indicated his loss was the result of a stroke, and did not support that the stroke was caused by a TBI. Counsel was informed he had the right to appeal within one year of the date of the later.12.On 26 September 2018, counsel submitted an appeal and provided a case report from Dr. , which states, in part, he met the applicant on 5 May 2014. He found that the applicant could barely stand. He was extremely nauseated and felt extremely off balance and dizzy. He was hydrated with intravenous fluids and also had headaches but there was no loss of vision or hearing loss. The applicant had a history of high blood pressure and seasonal allergies as well as gastro-esophageal reflux disease. There was no family history of strokes or any of the neurological diseases. The applicant was able to get up and ambulate independently and for a short distance without problems. He understood the applicant had other risk factors for stroke but given the fact that he had a posterior circulation stroke compromising only the right vertebral artery which possibly undergo went a rupture at the time of the accident and then had opacification because of thrombus contributed to this unusual stroke in this young person. The complete letter is available for the board's review and consideration13.On 17 December 2019, after his appeal, counsel was informed by the TSGLI program office:a.After reviewing the claim and supporting documentation, they were unable tooverturn the previous concerning losses associated with ADLs from the traumatic event on 22 April 2014. b.Federal Regulation 38 CFR 9.20 states the eligibility requirements for payment oftraumatic injury protection benefits are that a member "must suffer a scheduled loss that is a direct result of a traumatic injury and no other cause." It states "a traumatic injury is physical damage to a living body that is caused by a traumatic event." Federal Regulation 38 CFR 9.20 states "A benefit will not be paid for a scheduled loss resulting from (i) a physical or mental illness or disease." c.For determining if a member has a loss of TSGLI program specific ADLs, theFederal 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, (8) 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." d.Concerning TBI related ADL loss, the medical record does not support basic ADLloss at the 15-day milestone or beyond. The medical record shows the applicant had a past medical history of Transient lschemic Attacks (TIA) and uncontrolled blood pressure with readings of 182/122 and 153/115 approximately a year prior to the traumatic event as noted in the 23 May 2013 and 30 October 2013 Clinic Notes. These TIAs included symptoms of decreased memory, dizziness, headaches, and weakness as recorded in the 23 May 2013 Clinic Note. This history of TIAs and uncontrolled blood pressure are significant stroke risk factors and are substantial contributors, if not the primary cause, of the 4 May 2014 stroke. Thus, the 22 April 2014 traumatic event is not the only contributing factor to the 4 May 2014 stroke, which would make the TBl-related AOL loss claim ineligible for TSGLI payment. e.In addition, the 22 April 2014 MVA is most likely not as severe as it was reported,which was a rear-end collision by a car traveling 45 miles per hour. Hypothetically, a collision at 45 miles per hour should cause substantial damage to the cars with significant force to the passengers inside. The applicant had a history of neck pain and degenerative cervical spine disease as noted in the 23 May 2013 and 30 October 2013 Clinic Notes. Yet, this reportedly severe accident, which supposedly led to a whiplash injury severe enough to cause a stroke two weeks later, did not cause any significant symptoms or aggravation of his neck conditions at the time of the incident as is noted in the 5 May 2014 Consultation Report, the 15 May 2014 C&P Examination Note, and the statements by the applicant and his spouse. With this in mind, it is more likely that the 22 April 2014 MVA was minor, because of the lack of immediate symptoms, and less likely to be the sole contributing factor to the 4 May 2014 stroke. f.Even if the 22 April 2014 is conceded as the only cause of the stroke, the medicalrecord does not support basic ADL loss per TSGLI guidelines at the 15 day milestone or beyond. The May 5, 2014 (Day 2 after claimed start of ADL loss) Physical Therapy Flowsheet documents he performed a bath, oral care, and changed his gown by himself. The 7 May 2014 (Day 4 after claimed start of AOL loss) Physical Therapy Flowsheet documents he only needed contact-guard assistance with transfers and was able to ambulate 150 feet with a walker and contact-guard assistance. It also shows his sitting balance was within functional limits, but his standing balance was still impaired. The 15 May 2014 (Day 12 after claimed start of AOL loss) C&P Examination documents he was using a walker with a slightly weak, antalgic gait. It records he had normal strength in both arms and functional strength in both legs with only mild weakness. It notes he would be able to work a sedentary job. A person, who can work, has the physical ability to perform basic ADLs in at least a modified independent manner per TSGLI guidelines. The walker is accommodating equipment for safety to allow modified independent transfers, ambulating, and toileting. With functional sitting balance, the walker, and a chair, he should be able to dress in a modified independent manner. Thus, by Day 12, he demonstrated the physical ability to perform bathing, dressing, toileting, and transferring in at least a modified independent manner. This assessment is further supported by the 20 May 2014 Stroke Impact Scale, where he reported no difficulty with toileting and dressing of both his upper body and his shoes, only a little difficulty with bed-to-chair transfers, some difficulty with bathing and climbing a flight of stairs, and difficulty with standing/walking without loss of balance. g.Although the applicant reports some difficulty with certain activities, he does notreport inability to do these activities, and the walker would accommodate for the dizziness/loss of balance to allow modified independent standing and walking. The 20 May 2014 Rehabilitation Services Note documents he was able to balance in a single leg stance on the left for 20 seconds and for 10 seconds on the right. It also shows he was ambulating with the walker. This is a level of balance that should allow modified independent basic ADL performance. Therefore, his TBI-related ADL loss claim does not qualify for TSGLI payment at any milestone. h.The applicant and his wife's statements were reviewed and considered for thisadjudication. The statement that his wife provided ADL assistance to him for a period is accepted without question. However, the fact that she did provide ADL assistance is not the standard for TSGLI payment. The standard is that the ADL assistance must have been rendered because without such assistance he could not have performed ADLs in even a modified independent manner. Both statements state his memory was bad. However, the 5 May 2014 Speech Language Pathology Evaluation states his immediate memory was within normal limits and his short-term memory showed he answered 5 out of 6 questions correctly. The 5 May 2014, Consultation Report documents he was able to give a very good history, and the 20 May 2014, Stroke Impact Scale documents he reported no memory or communication problems. Thus, the medical record indicates his memory was adequate for basic ADL performance. Their statements state all of his balance and coordination was lost. However, the 5 May 2014, Consultation Report document normal finger-to-nose coordination, normal heel-to-shin testing, and the ability to get up and ambulate a short distance without any problems. The 7 May 2014, Physical Therapy Flowsheet documents he was able to ambulate 150 feet with a walker and only contact-guard assistance, and the May 15, 2014 C&P Examination documents he used a walker with a slightly weak, antalgic gait. The 20 May 2014, Rehabilitation Services Note documents he performed a single leg stand for 20 seconds on the left and 10 seconds on the right. Thus, he did not lose all of his balance and coordination. Also, as discussed above, the medical record showed physical abilities to perform modified independent basic ADLs prior to Day 15. In addition, the wife's statement states she put a chair in the shower to help bathing, which is adaptive behavior to allow modified independent bathing. Thus, their statements are not definitive proof the applicant qualified for TSGLI payment of TBl­related AOL loss at any milestone. i. Dr. statement was reviewed and considered for this adjudication. Strokes are usually a physical disease process that would be excluded from TSGLI payment. In this case, Dr. , one of his treating physicians, states the 22 April 2014 MVA was the primary cause for the 4 May 2014 stroke. However, as discussed above, there would be other contributing factors to the stroke, which would make this claim ineligible for TSGLI payment. Also, as discussed above, the medical record does not support basic ADL loss at Day 15 or beyond even if the 22 April 2014 MVA was conceded as the sole cause of the stroke. Thus, Dr. statement is not definitive proof that the applicant qualified for TSGLI payment at Day 15 of TBI-related ADL loss. j. The applicant has the right to apply to the Army Review Boards Agency if hedisagrees with the decision. In addition to the administrative appeals process, he had the right to appeal this decision in federal court. 14.Public Law 109-13 (The Emergency Supplemental Appropriations Act for Defense,the Global War on Terror, and Tsunami Relief 2005) signed by the President on11 May 2005 established the TSGLI Program. 15.Based on the applicant’s condition the Army Review Board Agency (ARBA) medicalstaff provided a medical review for the Board members. See "MEDICAL REVIEW"section. MEDICAL REVIEW: 1.The ARBA Medical Advisor reviewed the supporting documents provided and theVA's Joint Legacy Viewer (JLV). Due to the period of time of the applicant's servicethere are no records in iPERMS, the Armed Forces Health Longitudinal TechnologyApplication (AHLTA), or Health Artifacts Image Management Solutions (HAIMS). 2.The following findings and recommendations are made: The applicant is requestingTSGLI benefits be paid related to a stroke he suffered approximately 2 weeks after hewas involved in a motor vehicle crash and incurred a “whiplash” type injury to his neck. There does appear to be a relationship between the whiplash injury sustained from thecar crash, and the subsequent cerebrovascular accident (CVA) the applicant sufferedapproximately 2 weeks following the crash. The documentation supports that theapplicant had not been discharged at the time of the crash, and that he was eligible forTSGLI benefits. Furthermore, the evidence supports that the applicant required directassistance and/or stand-by assistance to perform 2 or more ADL’s for a period greaterthan 30 days, but less than 60 days. Therefore, based on the totality of the medicalinformation presented, it is the opinion of the Agency Medical Advisor that the applicantshould be considered entitled to receive TSGLI benefits in the amount of $50,000related to the TBI presenting as stroke as a result of the whiplash trauma he sustained in the car crash. BOARD DISCUSSION: 1.After reviewing the application and all supporting documents, the Board found that relief was warranted. The Board carefully considered applicant’s counsel’s request, the military records, an advisory opinion, and regulatory guidance. The Board considered the applicant’s counsel’s statement, documents provided by the applicant and the review and conclusion of the advisory findings. The Board concurred with the medical advisory opinion that the applicant met the requirements and was eligible to receive Traumatic Servicemembers' Group Life Insurance (TSGLI) benefits in the amount of $50,000 related to the TBI presenting as stroke as a result of the whiplash trauma he sustained in the car crash. The Board agreed there was sufficient evidence to grant relief. 2.The applicant’s request for a personal appearance hearing was carefully considered.In this case, the evidence of record was sufficient to render a fair and equitabledecision. As a result, a personal appearance hearing is not necessary to serve theinterest of equity and justice in this case. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 :X :X :X GRANT FULL RELIEF : : : GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: The Board determined that the evidence presented was sufficient to warrant a recommendation for relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant should be entitled to receive TSGLI benefits in the amount of $50,000 related to the TBI presenting a stroke as a result of the whiplash trauma he sustained in the car crash. Microsoft Office Signature Line... 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 May2005 established the TSGLI Program. The U.S. Army Combat-Related SpecialCompensation Office has been designated as the lead agent for implementing the ArmyTSGLI Program. The TSGLI Program was established by Congress to provide relief toSoldiers 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 requisitequalifications set forth by the Department of Defense. A service member must meet allof the following requirements to be eligible for payment of TSGLI. The service member must have: • been insured by SGLI at the time of the traumatic event • incurred a scheduled loss and that loss must be a direct result of a traumatic injury • suffered the traumatic injury prior to midnight of the day of separation from the Uniformed Services • suffered a scheduled loss within 2 years (730 days) of the traumatic injury • survived for a period of not less than 7 full days from the date of the traumatic injury (in a death-related case) 2. A qualifying traumatic injury is an injury or loss caused by a traumatic event or a condition whose cause can be directly linked to a traumatic event. The HRC official TSGLI website lists two types of TSGLI losses, categorized as Part I and Part II. Each loss has a corresponding payment amount. 3. Part I losses includes sight, hearing, speech, quadriplegia, hemiplegia, uniplegia, burns, amputation of hand, amputation of four fingers on one hand or one thumb alone, amputation of foot, amputation of all toes including the big toe on one foot, amputation of big toe only, or other four toes on one foot, limb salvage of arm or leg, facial reconstruction, coma from traumatic injury and/or traumatic brain injury (TBI) resulting in inability to perform at least two ADLs, hospitalization due to TBI, and genitourinary losses. 4. Part II losses include traumatic injuries, other than TBI, resulting in the inability to perform at least two ADL, which are dressing, bathing, toileting, eating, continence, and transferring, for 30 or more consecutive days and hospitalization due to a traumatic injury other than TBI. TSGLI claims may be filed for loss of ADL if the claimant requires assistance from another person to perform two of the six ADL for 30 days or more. ADL loss must be certified by a healthcare provider in Part B of the claim form and ADL loss must be substantiated by appropriate documentation, such as occupational/physical therapy reports, patient discharge summaries, or other pertinent documents demonstrating the injury type and duration of ADL loss. 5. Appendix B (Glossary of Terms) of the TSGLI Procedures Guide, dated September 2008, provides the following definitions: a. Traumatic Event: The application of external force, violence, chemical, biological, or radiological weapons, accidental ingestion of a contaminated substance, or exposure to the elements that causes damage to a living body. Examples include: • military motor vehicle accident • military aircraft accident • civilian motorcycle accident • rocket propelled grenade attack • improvised explosive device attack • civilian motor vehicle accident • civilian aircraft accident • small arms attack • training accident b. Traumatic Injury: The physical damage to a living body that results from a traumatic event. c. External Force: A force acting between the body and the environment, including a contact force, gravitational force, or environmental force, or one produced through accidental or violent means. 6. Army Regulation 15-185 (ABCMR) states ABCMR members will review all applications that are properly before them to determine the existence of an error or injustice; direct or recommend changes in military records to correct the error or injustice, if persuaded that material error or injustice exists and that sufficient evidence exists on the record. The ABCMR will decide cases on the evidence of record. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error injustice by a preponderance of the evidence. It is not an investigative body. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS//