IN THE CASE OF: BOARD DATE: 25 October 2021 DOCKET NUMBER: AR20210012150 APPLICANT’S COUNSEL REQUESTS: correction of his military records to show entitlement to payments for a denied Traumatic Servicemembers' Group Life Insurance (TSGLI) claim for 120 days of activities of daily living (ADL) losses caused by a bicycle accident. APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Letter of Representation with Power of Attorney * Counsel’s Petition with Listed Exhibits * Exhibit A – TSGLI Applications * Exhibit B – TSGLI Denial Letters * Exhibit C – Medical Records (9 pages) * Exhibit D – Three Physician Statements * Exhibit E – Caretaker Statement * Exhibit F – Applicant’s Personal Statement * Exhibit G – Medical Timeline of Events * Exhibit H – Case Law, Civil Action Number 3:15-CV-00473-CRS FACTS: 1. The applicant did not file within the three-year time frame provided in Title 10, United States Code, section 1552(b); however, the Army Board for Correction of Military Records (ABCMR) conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. Counsel states on behalf of the applicant, with power of attorney furnished, he and his client disagree with the decision to deny TSGLI benefits for 120 days of activities of daily living (ADL) losses caused by traumatic injury due to a bicycle crash that occurred on 14 March 2015. a. The applicant was severely injured in a bicycle accident and has been consistently denied his TSGLI benefits for hospitalization and activities of daily living (ADL) for other traumatic injury (OTI) up to 120 days. The most recent denial letter stated in part that the applicant’s medical records indicated he consistently had a normal gait, good balance, coordination, and strength to all extremities. The applicant had limitations to range of motion with dressing himself while wearing the Cervical- Thoracolumbosacral Orthosis (CTLSO) brace, which was the only ADL within the 30 days milestone. Counsel references case law in support of the claim requesting the applicant be awarded for at least 120 days of loss of ADL from 14 March 2017 to 14 July 2017 [sic]. b. In the applicant’s case, the claim arises out of a traumatic injury that took place on 14 March 2017 [sic] in. The applicant was severely injured when he was riding his bicycle down a hill and fell off of a four foot drop. He went over the handlebars and landed in a hyper-extension type movement. He was seen at the emergency room (ER) where an x-ray revealed he broke his T6 and T7 vertebrae, and the T8 and T9 disk were herniated. He was discharged home; however, in the following days his pain worsened and became intense with any movement. He began to have severe neck and back pain and was subsequently placed in a full back brace starting from his hips to his head on 24 March 2015. The applicant was placed on quarters and on a profile with continued strict ER precautions on 27 March 2015. On 9 April 2015, he was paced on convalescent leave and in a full torso brace. At a follow-up appointment on 14 April 2015, the applicant complained of ongoing back pain, he was told to continue use of his back brace and return in 3-4 weeks. The applicant had his convalescent leave extended upon returning and was told to continue further use of the back brace until his next follow-up on 10 June 2015. It was not until late June, early July that the pain was tolerable enough to get out of the back brace and perform physical therapy. c. The recovery was long and painful, the caregiver describes their daily routine which should be considered as significant evidence and addressed in the TSGLI administrative proceedings. Ms. testified that the applicant required assistance with dressing, showering, toileting, and transferring. She provided the assistance until July 2015 when the applicant began physical therapy. Additionally, an observing orthopedic doctor, two treating doctors, and an independent medical professional corroborate Ms. statement. The applicant was required to wear the CTLSO brace at all times, when out of bed, and he was unable to bend or lift. The applicant submitted an application, certified by his observing orthopedic doctor, wherein he stated he was not able to independently dress, bathe, transfer, or toilet. He required assistance from 14 March 2015 to 15 July 2015. d. It is an injustice that the applicant was denied TSGLI benefits for ADL loss merely because a reviewer claimed, in part, that “dressing” is only one ADL within the 30 day milestone. Contrary to the decision, the medical evidence does in fact provide substantiating support to indicate that he was incapable of performing at least two ADLs for at least 120 consecutive days. The facts involving the nature of the traumatic event, extent of his injury, surgery, and orthopedic notes from such event should enough for common sense to dictate in this case. Pursuant to 38 CFR 1, § 9.20 (f)(19), a Traumatic Injury resulting in an inability to perform at least two activities of daily living shall receive $25,000 at each 30th consecutive day of ADL loss from March 14, 2015 to July 14, 2015 - which constitutes the basis for an award of $100,000.00. 3. The applicant and his counsel provide: a. The below listed documents to be addressed in the service record: * TSGLI Applications * TSGLI Denial Letters b. Medical records (9 pages) for treatment received from approximately 16 March 2015 through 15 July 2015. c. Three physician statements which serve as medical expert testimony. (1) A statement from Dr dated 17 August 2017, indicated the applicant became his patient following a severe bicycle accident on 14 March 2015. He concluded the applicant would need surgery after a review of his CT scans and MRI. The applicant was reluctant and the physician agreed to postpone surgery and keep a close eye on his vertebrae while the applicant used a brace. The MRI revealed both the T6 and T7 vertebrae had sustained significant fractures and a disk herniation between T8 and T9. Surgery is typically recommended to stabilize the spine; however, the applicant was willing to post-pone surgery in an attempt to let the body heal itself given his age and prior activity level and he supported the applicant’s request. The injury put a substantial limitation on the applicant’s life style and he required help at home. The applicant’s spine was extremely weakened and unstable, they had to make sure that any movement was completely restricted throughout his daily life. Any movement could result in severe injury or worse and he prescribed at CTLSO brace to stabilize his spine. The applicant was out of work and needed direct assistance with bathing, dressing, getting in and out of chairs and off the toilet, in and out of bed, and assistance was required from the time of his accident until July 2015, when he showed signs of healing and could begin physical therapy. (2) A letter from Dr. dated 6 May 2018, noted he had reviewed many TSGLI injury claims over the last ten years and supported the applicant’s claim. Dr. reiterated the comments from the care provided by Dr. and went on to confirm that wearing the CTLSO brace required hand on or standby assistance getting in and out of the brace. It is impossible to manipulate the function without a caregiver. Due to the limitation of specific motions for a person wearing the brace and taking pain medication, they would not be stable enough to be independent and able to dress and bathe. He attached the patient instructions on the use of the CTLSO brace with his letter in an effort to show the restrictions of wearing said brace. He recommends approval of the applicant’s claim. (3) Dr. and Dr., composed a joint statement, dated 25 March 2020, which indicated they reviewed the applicant’s medical records and letter of denial from the TSGLI office. They provided a brief overview of the applicant’s injury and statements made by his orthopedic surgeon, to include being prescribed the CTLSO brace. They further noted that the applicant’s level of pain prevented him from being able to perform any ADLs without the risk of severe injury or the possibility of becoming paralyzed. The surgeon and other healthcare provided were very concerned about the possibility of further trauma. The injuries sustained on 14 March 2015 would the applicant to require around the clock help for all of his ADLs. He would need assistance dressing, showering, toileting, moving his body, transportation, and food preparation for at least the prescribed 120 days. He was released to start physical therapy/rehab on 14 July 2015, where he slowly regained his ability to care for himself. It is their professional opinion that the TSGLI office needs to reevaluate the evidence to support the applicant claim for ADL losses. d. A caretaker statement from Ms. a good friend of the applicant’s, noted the applicant was a very active, private, and prideful man that never asked for help, which was a true testament to the injuries he sustained. Upon being notified that he would not be able to move freely nor conduct daily activities without direct assistance, she volunteered to help him. The applicant was required to wear a brace, anytime he was out of bed for several months, which stabilized his entire upper body from his hips to include his head. He was allowed to walk short distances with someone at this side, he was not allowed to lift anything more than a remote control or his food, he required assistance with several things on a daily basis from the date of the accident through July 2015. She provided assistance with dressing, showering, toileting, getting in and out of chairs or the couch, cooking, and driving. On 14 July 2015, the orthopedic surgeon informed the applicant he was pleased with his healing and released him to begin physical therapy. e. A personal statement from the applicant wherein he provided his own interpretation of TSGLI guidelines and Federal statutes. He believes because his medical records indicated he had normal gait, good balance, coordination, and strength in all extremities, the reviewer assumed the statement meant he did not require assistance. The treating orthopedic surgeon, Dr. clearly explained that he “needed direct assistance with nearly all normal daily activities to include bathing, dressing, getting in and out of chairs, on and off the toilet, and in and out of bed.’ His ability to perform simple tasks, having a normal gait and good balance, had no bearing on whether he could independently perform the claimed ADLs. The denial letter states he only met one of the ADL losses, dressing, and failed to meet the additional ADL loss standards. His caregiver clearly stated he needed assistance getting in and out of chairs, in and out of bed, and in and out of the shower. She also provided assistance washing areas he could not reach such as his legs and feet. As indicated by the physician, the multiple crushed vertebra and instability of his spine severely restricted his movement and abilities. The result of any excessive movement or fall would likely have resulted in paralysis or even death. Therefore, the continued use of the brace and hands-on assistance for several months was critical to his healing and his ability to function, as well as shear survival. f. A medical timeline of events captures the following: * 14 March 2015 – bicycle accident * 15 March 2015 – admitted to medical center with thoracic spine compression (T5 moderate, T4 minimal) fracture, upper back pain, discharged home with two prescriptions * 16 March 2015 – f/u from ER visit, pain 7 out of 10, unsure of x-ray results * 19 March 2015 – f/u with more constant and intense pain with movement * 20 March 2015 – given quarters for 24 hours, discussed strict precautions * 27 March 2015 – instructed to perform limited activities, on quarters and profile with f/u for orthopedics the following week * 9 April 2015 – placed into full back brace from hips to head on 24 March 2015 by Dr. on quarters the past three week, and requests convalescent leave – convalescent leave granted for 30 days and provided pain medication * 14 April 2015 – slight improvement, pain still gets up to 8 out of 10, worse with sleep, continue with CTLSO brace and f/u 3-4 weeks with more x-rays * 12 May 2015 – still in full brace and recommended he continue use through 10 June 2015, still in observation to determine if surgery is required * 30 June 2015 – patient performed and tol tx w/slight increase in pain * 8 July 2015 – patient rol ex w/increased pain with scapular strengthening, pain is maintained with tolerable range * 10 July 2015 – patient performed and tol tx with increased difficulty and discomfort noted with prone T’s, Y’s * 13 July 2015 – patient performed and tol tx with discomfort noted with T’s, Y’s, reported getting better, received tens unit to help with pain; ortho f/u next week g. In Civil Action Number 3:15-CV-00473-CRS, counsel referenced “ [c]ommon sense dictates that a person who (1) has suffered a gunshot wound shattering the bones in her foot; (2) underwent emergency surgery to that foot; (3) has been ordered on discharge she needs an assistive person for transferring, toileting, bathing, and dressing; (4) had a metal external fixation device on that foot until cleared; and (6) has been ordered to keep her incision dry and to avoid tub bath, would need the assistance of another person to dress, transfer, and bathe for at least 30 days after being shot.” In the current case, the applicant had surgery, extensive pain management, and required a CTLSO brace for several months. As in the case referenced, common sense should dictate that the applicant would require assistance of another with daily living activities. 4. A review of the applicant’s service record shows: a. He enlisted in the Regular Army on 10 September 2013. b. He was honorably discharged on 29 January 2014. His DD Form 214 (Certificate of Release or Discharge from Active Duty) shows he completed 4 months and 20 days of active service. He was assigned separation code KGM and the narrative reason for separation listed as “Accept Commission or Warrant in the Army.” c. He was appointed as a Reserve commissioned warrant officer and executed an oath of office on 30 January 2014. d. Orders 338-338-A-3911, dated 30 January 2014, ordered the applicant to active duty with a 6 year active duty commitment upon successful completion of the Warrant Officer Candidate Course (WOCC) with an effective date of 30 January 2014. e. Orders 106-0500, dated 15 April 2016, discharged the applicant from active duty with an effective date of 4 August 2016. Two amendments to the orders were published to change the effective date of discharge: * Orders 110-0500, dated 19 April 2016, changed the date to 6 August 2016 * Orders 120-0500, dated 29 April 2016, changed the date to 9 August 2016 f. He was honorably discharged from active duty on 9 August 2016. His DD Form 214 shows he completed 2 years, 6 months, and 10 days of active service. He was assigned separation code JHF and the narrative reason for separation listed as “Failure to Complete Course of Instruction.” g. The applicant’s service record was void of any information regarding the traumatic injury which resulted from the bicycle accident outside of the documents included with the TSGLI applications, supporting documents, and decision letters. 5. TSGLI applications, supporting documents, and TSGLI decision letters are contained within the applicant’s service record. Included are the following: a. SGLV 8600, dated 23 May 2016, Part B (Medical Professional’s Statement) noted the applicant had a bicycle accident and went over the handlebars, landing in a hyper-extended type movement. The MRI showed that the T6 and T7 vertebrae were fractured and the T8-T9 disks were herniated. The applicant was prescribed and wore a CTLSO brace at all times when out of bed and unable to bend until physical therapy increased his range of motion and associated pain diminished. The applicant’s the losses were observed and included the below ADLs for inability to independently perform: * unable to bathe independently – physical assistance required to get to wash back, legs, and feet * unable to dress independently – physical assistance required with putting on and taking off pants, shorts, underwear, socks, and shoes * unable to toilet independently – physical assistance getting clothing on and off * unable to transfer independently – physical assistance required getting in and out of bed and recliner b. On 3 May 2017, the applicant was notified his claim for the event on 14 March 2015 was not approved for the following reasons: * hospitalization is defined as inpatient stay which lasts for 15 or more consecutive days, he was hospitalized for 3 days * medical documentation provided with his claim indicated he was only hospitalized for 1 day and did not meet the TSGLI medical standard * TSGLI regulation states if able to perform the activity by use of accommodating equipment/adaptive measures, then Soldier is considered able to independently perform activity * Medical records indicated the pain and instability were the largest contributing factors to any ADL deficits therefore he did not meet the TSGLI minimum standard c. On 28 September 2017, counsel submitted a request for reconsideration for losses of ADL due to well over 120 days due to a traumatic injury. Counsel provided in support of his application: (1) SGLV 8600A, dated 28 September 2017, indicated new medical evidence included a medical nexus opinion letter, a caregiver statement, medical timeline and medical records. The medical nexus opinion letter by Dr. is referenced in the applicant’s attached documents, in addition to the caregiver’ statement, and medical timeline. (2) The medical records provided were also referenced above; however, included additional documents from the applicant’s visit to MCE on 15 March 2015. d. On 7 March 2018, the TSGLI Certifying Office evaluated his claim for Traumatic Injury Protection benefits under TSGLI and his claim was not approved for his event in Alabama on 14 March 2015. His claim for the inability to perform ADLs due to traumatic injury (other than traumatic brain injury) was not approved because his loss did not meet the TSGLI medical standard. The letters provided with his claim were reviewed and the medical documentation submitted indicates the nature of injury and recovery. The documentation from the time of treatment does not support the statements or indicate that he was rendered incapable of independently performing at least to ADLs during the time period claimed. e. On 13 August 2018, counsel submitted a request for reconsideration to grant at least 30 days of ADL loss. Counsel provided in support of the application SGLV 8600A, dated 13 August 2018, which noted new medical evidence included a second medical nexus opinion letter by an independent doctor (observing medical nexus letter previously submitted) and literature on the CTLSO brace use. The second medical nexus opinion letter by Dr. is referenced in the applicant’s attached documents, in addition to the literature on the use of the CTLSO brace. f. Brigadier General., the Adjutant General, notified counsel he received the appeal request and was unable to overturn the previous adjudication concerning losses of ADLs from the traumatic event that occurred on 14 March 2015 in Enterprise, AL. In addition to outlining reasons previously addressed on why the claim was denied, he also noted that although the applicant had limitation to the range of motion with dressing himself while wearing the CTLSO brace, that was only one ADL within the 30 days milestone. The applicant’s medical records indicated he consistently had normal gait, good balance, coordination, and strength to all extremities. In regards to bathing, Ms. stated “I helped him sit down on the shower bench and he would wash what he could.” Her statement indicated she provided ADL assistance which is not the standard for TSGLI payment. The standard for TSGLI payment was the ADL assistance must have been rendered because without such assistance, the Soldier could not have performed the ADLs in even a modified independent manner. The applicant’s claim did not qualify for TSGLI payment at the 30 day milestone or beyond. 6. By law (Public Law 109-13), 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, or survived for a period of not less than 7 full days from the date of the traumatic injury (in a death-related case). 7. 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. a. 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. b. 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. 8. Based on the applicant’s condition the Army Review Boards Agency medical staff provided a medical review for the Board members. See ?MEDICAL REVIEW? section. MEDICAL REVIEW: 1. The claimant through counsel, requests compensation through the TSGLI program for required assistance for 120 days or more, for at least 2 ADLs. The claimed loss was due to the other than traumatic brain injury event on 14 March 2015 when he sustained injury due to a mountain bike accident. The Army Review Boards Agency Medical Advisor was asked to review this request. The review included but was not limited to the claimant's medical and military records; the claimant’s caretaker’s statement (Ms.); the claimant’s orthopedic surgeon’s 17 August 2017 statement; the 06 May 2018 independent physician reviewer’s statement; the 25 May 2020 chiropractor’s statement; the claimant’s counselor’s brief; and the TSGLI Procedural Guide. The records were carefully reviewed. 2. On 14 Mar 2015, the claimant had been riding his mountain bike on a trail, and went down a slight hill and went off a 4 foot drop off. He went over the handle bars and hyperextended his back. The following day, he sought help at the Medical Center Enterprise ER. X-rays showed T6 and T7 vertebral compression fractures; and T8-T9 disc herniation. He was eventually prescribed a CTLSO brace in lieu of surgery. He endorsed that he was instructed to wear the brace at all times when out of bed. 3. The claimant contends he was unable to perform the following ADLs for greater than 120 days after the event (from 14Mar2015 to 14Jul2015): * unable to bathe independently; he required physical assistance (PA) with washing his back, legs, and feet * unable to dress independently; he needed assistance to put on/off pants/shorts, underwear, socks, and shoes/boots; he required physical assistance * unable to toilet independently; he required assistance getting clothing off and on; he required physical assistance * unable to transfer independently; he required assistance getting in and out of bed and recliner; he required physical assistance 4. The medical treatment records showed the following: a. 15 March 2015 Medical Center Enterprise ER (Day 2 after event). The claimant presented to the ER and reported that he had fallen from his bike the day prior. He was wearing a helmet. There was no loss of consciousness. His exam showed normal mentation, motor function, and his gait was steady. He had small abrasions on the face, left arm, and both legs, in addition to the compression fractures. He was discharged home after almost 4 hours, on the same day. There was no indication that he was discharged into the care of anyone else. b. 19 March 2015 (Day 6). Revealed that the claimant was single and lived alone. c. 25 March 2015 Southern Bone and Joint Specialist (Day 12). He complained of pain 6 or 7 out of 10 at its best. Pain was worse with movement but better with slow movement. The specialist observed that “He ambulates with a pretty normal gait”. He rotated about 45 degrees to the left and 22 degrees to the right with good balance. He had good strength and sensation in both legs. Minimal activity was advised until after an MRI. The plan was bracing versus surgery. d. 31 March 2015 SBJ Specialists MRI (Day 18) showed T6 and T7 end plate compression fractures, and T8-T9 disc protrusion with mass effect on the cord and stenosis. e. 02 April 2015 SBJ Specialists (Day 20). The claimant reported pain 7-8/10 without medication, and 5/10 with medication. He had good balance and coordination on tandem walk. There was good strength, sensation and reflexes in both legs. The specialist discussed the possibility that the claimant had sustained a more subtle flexion distraction injury which would make him more vulnerable to having instability of the spine, and consequently more vulnerable to a spinal cord injury. The claimant preferred bracing at the time. He was advised that if bracing didn’t work, he would need surgery. Concerning the brace, the specialist wrote “we are going to get him a CTLSO”. f. 07 April 2015 (Day 25) annotated that he had been on quarters for 3 weeks and had been advised to request convalescent leave. The claimant was to wear the back brace for about 10 days and then have another MRI. If the fracture was not healing on its own, he would probably need to have surgery. g. 14 April 2015 Specialists (Day 32). The pain was intermittent now and ranged from 3-9/10 but at the time it was 5/10, and was still located in mid thoracic area. The exam showed normal gait and good strength in both legs. h. 08 May 2015 Specialists (Day 56) note indicating that the claimant should not work until further notice. i. 12 May 2015 (Day 60). He was still in a full back brace and recommended to wear it until his follow up visit. He stated that the orthopedic surgeon was still trying to determine if the brace would be enough to avoid surgery. He had intermittent pain, 2/10, but it could reach 7/10 at times. j. 10 June 2015 Sports Medicine & Rehab (Day 89). The instructions were to increase ROM of the back; increase strength of the back; and improve transfer abilities. The instructions to ‘improve functional use of upper extremity’ and ‘improve functional use of lower extremity’ were left blank. k. 22 June 2015 Lyster Rucker ACH (Day 101). He stated that he was no longer wearing the back brace, he was to begin physical therapy. He was not to work until further notice. He denied any other concerns. l. 25 June 2015 Lyster Rucker ACH Physical Therapy Initial Evaluation (Day 104). He reported that pain increased with sitting more than 30 minutes, and with sneezing, standing, and with back flexion. Previous therapy included: CTLSO use, discontinued on 19 June 2015; walk 1-2 miles as tolerate daily, no lifting, and gentle ROM for flexion and rotation. During the visit, he was instructed in home care to include proper positioning in bed; and proper posture while sitting with good lumbar support. And finally, he was given a home exercise program (HEP) for lumbar stretching, SKC (single knee to chest)/DKC (double knee to chest), hamstring stretch, piriformis, and sciatic nerve glides. He was able to perform/demonstrate exercises independently after proper instruction. m. 26 June 2015 Physical Therapy Clinic (Day 105). The claimant reported pain 0/10. During the visit, he rode the bike for 6 minutes and performed other tasks with slight increase in pain from 0 to1 out of 10. There was no indication or report of difficulties with ADLs. The 21 July 2015, 24 July 2015, 28 July 2015, and 30 July 2015 physical therapy visits also did not mention any difficulties with ADLs. 5. The record contained the following letters of support: a. The 17 August 2017 statement by the orthopedic specialist that the claimant “needed direct assistance with nearly all of his normal daily activities to include bathing, dressing, getting in and out of chairs and off the toilet and out of bed” from the time of the accident into July 2015, was not supported by the medical record. b. The 06 May 2018 statement by Dr that wearing the CTLSO brace required “hands on or standby assistance getting in and out of the brace” and indicated that consequently assistance was required for dressing and bathing from 24 March 2015 to 14 July 2015; was also not supported by the medical record. The 25 June 2015 Physical Therapy Initial Evaluation indicated that use of the CTLSO was discontinued on 19 June 2015. In addition, during the 22 June 2015 Lyster Rucker ACH visit, the claimant reported that he was no longer using the back brace. Moreover, needing assistance with donning and doffing the CTLSO is one ADL (dressing). c. The 25 March 2020 letter by the Chiropractors contained information that was contrary to the record. They indicated that the claimant was hospitalized for his injuries, but the record showed that the claimant was released the same day he was evaluated in the ER. They stated the CTLSO was prescribed “at all times until he completed physical therapy”, but the record showed the brace was discontinued prior to the start of physical therapy. They also indicated that the applicant needed help “moving his body”, even though the record showed he was fully ambulatory from the day of the injury (gait was steady). d. The caregiver indicated that they assisted the claimant with dressing, showering, and toileting. They also stated that they helped the claimant when his father could not. The time frame for when care was given by the caregiver was not clear; nor was it clear when and what care was provided by the claimant’s father. It was noted that there was no mention of caregivers accompanying the applicant to visits or providing care in the available record. The ARBA reviewer is NOT implying that care was not given, just simply observing that it was not acknowledged in documentation. The fact that care was given is not the TSGLI standard, the assistance with ADLs must be necessary and without which the ADL could not be accomplished. The testimony that the reported care was provided is accepted. e. The claimant contends that references to his gait being normal did not equate to his being able to perform ADLs without assistance; and that only a few steps were actually observed. Although only a few steps may have been observed during the visit; normal gait, even for a few steps allows the observer for example, to assess lower extremity muscle strength; balance and coordination; and even some information about the upper extremities. It was also observed that there were no complaints about mobility except early on, he had less pain when he moved more slowly; and at no time did the record indicate that assistance was needed for ambulation. 6. The medical record showed that on day 1, in the emergency room, a steady gait was observed. On day 12, the orthopedist also documented that the applicant had a “pretty normal gait” with good balance and normal strength and sensation in both legs. There was no indication from the medical record, that the claimant needed assistance with ambulation. There was also no injury to upper extremities—this would enable him to use his arms to assist with transfers; as well as with dressing and bathing when using a long handle tool for extended reach to avoid flexing the back to reach his legs, and to reach his feet, both knees could flex. The CTLSO instructions indicated that the wearer would need to sit in firm seats to keep the brace in position; this also would make independent transfers possible. Certainly, when the applicant needed to remove the CTLSO, he would need assistance. However, he endorsed that he was instructed to wear the CTLSO at all times when out of bed. The CTLSO instructions provided indicated that the CTLSO could be worn while showering. The CTLSO was also designed so that it can be worn while going to the bathroom independently or with adaptive toileting equipment (for example a raised seat with handles). The CTLSO instructions indicated that the wearer ought to be able to do many normal activities by themselves; or with little help from caregivers OR use of an assistive device. In lieu of assistance from others, the instructions provided ideas on how to accomplish tasks independently or modified independent (with the use of assistive devices); for example, use of special tools, to pick up things from off the floor was described. Medical evidence supports that the claimant sustained a severe back injury and needed use of a CTLSO for several weeks to prevent further injury to the spine. Use of the CTLSO ended 19 June 2015. During use of the CTLSO, it is acknowledged that he would require some physical assistance with dressing. This would meet TSGLI standard for loss of one ADL. Based on review of available medical evidence, the claimant’s loss did not meet the minimum requirements for a loss of 2 ADLs under TSGLI standard for 120 days, for traumatic injury other than traumatic brain injury. BOARD DISCUSSION: After reviewing the application, all supporting documents and evidence found within the military record, the Board determined that relief was not warranted. The Board carefully considered applicant’s contentions, military record, medical review and regulatory guidance. The Board concurred with the medical review finding that the claimant’s loss did not meet minimum requirements for two ADLs in accordance with TSGLI standards. Based on the preponderance of evidence available for review, the Board determined the evidence presented insufficient to warrant a recommendation for relief. 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. Title 10, United States Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice. This provision of law also allows the ABCMR to excuse an applicant's failure to timely file within the 3 year statute of limitations if the Army Board for Correction of Military Records (ABCMR) determines it would be in the interest of justice to do so. 2. Public Law 109-13 (The Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief 2005) signed by the President on 11 May 2005 established the TSGLI Program. The U.S. Army Combat-Related Special Compensation Office has been designated as the lead agent for implementing the Army TSGLI Program. The TSGLI Program was established by Congress to provide relief to Soldiers and their families after suffering a traumatic injury. TSGLI provides between $25,000.00 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) 3. A qualifying traumatic injury is an injury or loss caused by a traumatic event or a condition whose cause can be directly linked to a traumatic event. The HRC official TSGLI website lists two types of TSGLI losses, categorized as Part I and Part II. Each loss has a corresponding payment amount. a. 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. b. 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. 4. 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, and/or 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. Total and permanent loss of sight in one or both eyes; loss of hand or foot by severance at or above the wrist or ankle; total and permanent loss of hearing in one or both ears; loss of speech; loss of thumb and index finger of the same hand by severance at or above the metacarpophalangeal joints; quadriplegia, paraplegia or hemiplegia; 3rd degree or worse burns covering 30 percent of body or 30 percent of the face; coma or traumatic brain injury; or e. Other traumatic injuries 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 ADLs if the claimant is completely dependent on someone else to perform 2 of the 6 ADLs for 30 days or more (15 days or more in the case of traumatic brain injuries). A healthcare provider must certify ADL loss 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 medical documents demonstrating the injury type and duration of ADL loss. While TSGLI claims will not be approved without a certification from a healthcare provider, additional documentation must be provided to substantiate the certification. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20210012150 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1