IN THE CASE OF: BOARD DATE: 19 October 2022 DOCKET NUMBER: AR20210015070 APPLICANT REQUESTS: * 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) * ARBA online application * SGLV 8600 (Application for TSGLI Benefits), 15 May 2021 * Army Human Resources Command (AHRC) TSGLI, 14 July 2021 * Department of Veterans Affairs (VA) rating decision letter * VA summary of benefits letter FACTS: 1. The applicant states he applied for TSGL due to losing his hearing. He was shot 30 October 2004 by a sniper in Iraq. The bullet lodged in his spin and caused paralysis in his right leg and severed his iliac artery. He was given antibiotics to help infection, being ototoxic, and he is now bilaterally deaf. Although the injury happened in 2004, the VA only recognized his hearing loss in 2019. Initially, he was given $75,000 for the bullet in his spine. The ototoxic drug lingered in his system causing nerve damage over time. He went completely deaf in 2011. Since the hearing loss was not recognized until 2019 as service related, his TSGLI claims were denied. After the VA decided his hearing loss was service related, he applied again, but his time to appeal had run out and he was referred to the Army Review Boards Agency (ARBA). The schedule for hearing loss under TSGLI is $100,000. He lost his hearing due to being shot and feels he should be entitled to $100,000 award per the schedule; or at minimum should qualify for another $25,000 under his initial application. However, he believes the hearing loss should be considered a separate case as the hearing loss happened 7 days beyond his initial injury, entitling him to a full, additional award of $100,000. 2. The applicant enlisted in the United States Army Reserve on 10 January 2002 for a period of 8 years in the delayed entry program (DEP). He was discharged from the DEP enlisting in the Regular Army for a period of 5 years on 6 February 2002. 3. The applicant was awarded the Purple Heart for wounds received in action on 30 October 2004. He was found medically unfit for retention and was honorably retired on 15 September 2006 for permanent disability. 4. The applicant submitted, through counsel, a SGLV Form 8600 (Servicemembers’ Group Life Insurance Traumatic Injury Protection Program (TSGLI)), dated 11 September 2014, for hospitalization for uniplegia of his right leg and bilateral hearing loss. Traumatic Injury Information states on 30 October 2004, in Iraq, [the applicant] was shot, which led to traumatic injuries that included a severed iliac artery, a spinal injury, a severe infection, and a complete loss of hearing. He also suffered paralysis of his leg that was related to the spinal cord injury. A TSGLI Intake form indicates his initial application was received 14 January 2010 and his reconsideration was received on 28 July 2011. 5. Counsel’s cover letter requested the applicant’s appeal be held until additional documents and evidence are submitted. On 5 January 2015, counsel submitted a medical opinion, dated 29 December 2014. 6. On 17 December 2015, counsel was notified by the Office of the Adjutant General, Army Human Resources Command (HRC), Fort Knox, KY, the applicant’s claim was reviewed and were unable to overturn the previous adjudication concerning losses associated with uniplegia of the right leg and hospitalization due to traumatic injury (other than traumatic brain injury) from the traumatic injury on 30 October 2004 in Iraq. His claim was not approved because: a. Concerning the uniplegia of the right leg, program guidelines state the member must suffer complete paralysis of one limb due to damage to the spinal cord or associated nerves, or to the brain. The applicant’s neve damage only affected part of his leg, his quadricep muscles, and did not cause complete paralysis of the entire right leg. Furthermore, uniplegia payments cannot be combined with payments for loss of activities of daily living due to other traumatic injury according to program guidance. In the situation where both losses occur, the grater payment would be awarded, which would be the $75,000 previously paid. Thus, this case is not eligible for payment for uniplegia of the right leg per program guidelines, whether the loss occurred or not. b. In regard to hospitalization, hospitalization of 15 days due to other traumatic injury and the 30-day milestone for loss of activities of daily living duet to other traumatic injury are interchangeable, and their payments cannot be combined. Therefore, since [the applicant] has already been pain for loss of activities of daily living due to other traumatic injury at the 90-day milestone, he is not eligible for payment concerning hospitalization. 7. The applicant submitted a SGLV Form 8600, dated 15 May 2021, for hospitalization of 15 days due to other traumatic injury, specifically, bilateral hearing loss. Traumatic Injury Information states he was shot on 30 October 2004, while serving in Ramadi, Iraq. The bullet severed his iliac artery, hit his colon, then lodged in his spine. He was unconscious for a week between the time he was shot and the time he woke up in Washington D.C. at Walter Reed Army Hospital. During that time, he was treated with an ototoxic drug. The VA has officially listed as hearing loss linked to acoustic trauma. Acoustic trauma is conceded because he was treated with an ototoxic drug in service. 8. On 14 July 2021, the Special Compensation Branch (TSGLI), Army HRC Fort Knox, KY, notified the applicant he has exhausted his appeal rights with their office and was directed to appeal to ARBA. 9. The applicant provided his VA Rating Decision letter dated 7 August 2019 showing ratings of 100 percent for bilateral hearing loss and 10 percent for tinnitus effective 3 June 2019. Service connection is warranted because his hearing loss has been linked to acoustic trauma. Acoustic trauma is conceded because he was treated with an ototoxic drug in service. He also provided a VA summary of benefits letter dated 15 May 2021 showing he is 100 percent service-connected effective 3 June 2019. 10. On 25 March 2022, ARBA contacted Army HRC for copies of any advisory opinions on file for the traumatic event claimed on 30 October 2004. Army HRC responded on 19 April 2022 with the discussion and recommendation for the applicant’s SGLV Form 8600, dated 11 September 2014. The medical advisory opinions included do not address the applicant’s hearing loss. 11. Based on the applicant's contention the Army Review Boards Agency (ARBA) medical staff provided a medical review for the Board members. See "MEDICAL REVIEW" section. MEDICAL REVIEW: 1. The ARBA Medical Advisor was asked to review this case. Documentation reviewed included the applicant’s ABCMR application and accompanying documentation, his prior TSGLI denials, the military electronic medical record (AHLTA), the VA electronic medical record (JLV), the electronic Physical Evaluation Board (ePEB), the Medical Electronic Data Care History and Readiness Tracking (MEDCHART) application, and/or the Interactive Personnel Electronic Records Management System (iPERMS). 2. The applicant is applying to the ABCMR requesting the TSLGI benefit for hearing loss following exposure to ototoxic antibiotics. He states: I was shot on October 30, 2004, by a sniper in Iraq. The bullet lodged in my spine and caused paralysis in my right leg. It also severed my iliac artery. I was given antibiotics to help infection, these antibiotics ended up being ototoxic, and I am now bilaterally deaf. Although the injury happened in 2004, the VA only recognized my hearing loss in 2019. Initially I was given $75,000 for the bullet in my spine. The ototoxic drug lingered in my system causing nerve damage over time. It was 2011 before I went completely deaf. Because it was not recognized until 2019 as service related my TSGLI claims were denied ... The schedule for hearing loss from TSGLI is $100,000, I lost my hearing due to being shot, and feel I should be entitled to the $100,000 award as per the schedule. I believe that at a minimum I should qualify for another $25,000. However, I believe that it should be considered a separate case as the hearing loss happened 7 days beyond my initial injury, which should entitle me to full $100,000 award. 3. The TSLGI Procedural Guide states “In order to qualify for TSGLI payment, a member must meet all of the following requirements: 1) The member must suffer a scheduled loss (see Part 4, Scheduled Losses) that is a direct result of a traumatic injury due to a traumatic event and no other cause ...” It then defines traumatic injury, traumatic event, and external force: Traumatic Injury - A traumatic injury is the physical damage to your body that results from a traumatic event. Traumatic Event - A traumatic event is the application of external force, violence, chemical, biological, or radiological weapons, accidental ingestion of a contaminated substance, or exposure to the elements that causes damage to the body. External Force - An external force is a force or power that causes an individual to meet involuntarily with an object, matter, or entity that causes the individual harm. There is a distinct difference between internal and external forces. “Internal forces” are forces acting between body parts, and “external forces” are forces acting between the body and the environment, including contact forces and gravitational forces as well as other environmental forces. 4. The TSLGI Procedural Guide states injuries excluded from TSLGI payment include “Diagnostic procedures, preventive medical procedures such as inoculations, medical or surgical treatment for an illness or disease, or any complications arising from such procedures or treatment.” The antibiotic therapy he received was a medical treatment and the resulting complication of hearing loss is therefore ineligible for a TSLGI payment, 5. In addition, the TSLGI Procedural Guide state that for a scheduled loss to be eligible for a TSLGI payment “The member must suffer the scheduled loss within two years (730 days) of the traumatic event.” 6. Based on the information currently available, it is the opinion of the ARBA medical advisor the applicant’s hearing loss does not qualify for the TSLBI benefit for traumatic hearing loss. Hence, it is recommended the request should be denied. BOARD DISCUSSION: 1. After reviewing the application, all supporting documents, and the evidence found within the military record, the Board found that relief was/was not warranted. The Board carefully considered the applicant's record of service, documents submitted in support of the petition and executed a comprehensive and standard review based on law, policy and regulation. Upon review of the applicant’s petition, available military records, Human Resources Command Special Compensation Brand (TSGLI) and the medical review the Board concurred the advising official that hearing loss does not qualify for the TSGLI benefit for traumatic hearing loss. The Board determined, based on TSGLI procedural guidance that a member must suffer the scheduled loss within two years of the traumatic event. Evidence in the record show the applicant’s traumatic event occurred on October 30, 2004, it was not until 2011 that the applicant filed claim for his hearing loss , which based on the guidance is outside the window of eligibility for TSGLI payment. Furthermore, according to TSGLI procedural guidance which states injuries excluded from TSLGI payment include “Diagnostic procedures, preventive medical procedures such as inoculations, medical or surgical treatment for an illness or disease, or any complications arising from such procedures or treatment.” The antibiotic therapy he received was a medical treatment and the resulting complication of hearing loss is therefore ineligible for a TSLGI payment. Based on this, the Board denied relief for approval of the applicant’s TSGLI claim. 2. Based on governing regulations, The Servicemembers' Group Life Insurance Traumatic Injury Protection (TSGLI) program is an automatic provision under Servicemembers Group Life Insurance (SGLI). TSGLI provides for payment to Servicemembers who are severely injured (on or off duty) as the result of a traumatic event and suffer a loss that qualifies for payment under TSGLI. TSGLI is designed to help traumatically injured Servicemembers and their families with financial burdens associated with recovering from a severe injury. TSGLI payments range from $25,000 to $100,000 based on the qualifying loss suffered. The benefit is paid to the member, someone acting on the member’s behalf if the member is incompetent, or the members’ SGLI beneficiary if the member is deceased. All members covered under SGLI who experience a traumatic event that directly results in a traumatic injury causing a scheduled loss defined under the program are eligible for TSGLI payment. 3. 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 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. 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 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 (Army Board for Correction of Military Records) prescribes the policies and procedures for correction of military records by the Secretary of the Army acting through the ABCMR. a. The ABCMR begins its consideration of each case with the presumption of administrative regularity. The applicant has the burden of proving an error or injustice by a preponderance of the evidence. b. Paragraph 2-11 states applicants do not have a right to a formal hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 7. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by the Army Review Boards Agency (ARBA) be provided with a copy of any correspondence and communications (including summaries of verbal communications) to or from the Agency with anyone outside the Agency that directly pertains to or has material effect on the applicant's case, except as authorized by statute. ARBA medical advisory opinions and reviews are authored by ARBA civilian and military medical and behavioral health professionals and are therefore internal agency work product. Accordingly, ARBA does not routinely provide copies of ARBA Medical Office recommendations, opinions (including advisory opinions), and reviews to Army Board for Correction of Military Records applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS//