IN THE CASE OF: BOARD DATE: 31 January 2022 DOCKET NUMBER: AR20210017397 APPLICANT REQUESTS: * reversal of the U.S. Army Human Resources Command (HRC) decision to deny additional payment for his Traumatic Servicemembers’ Group Life Insurance (TSGLI) claim * a personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Counsel Statement * DA Form 199 (Informal Physical Evaluation Board (PEB) Proceedings) * DD Form 214 (Certificate of Release or Discharge from Active Duty) * Order D 072-48 (Removal from Temporary Disability Retired List (TDRL)) * Excerpt of 38 C.F.R. 9.20 (Traumatic Injury Protection) * TSGLI – A Procedural Guide * Three Letters from the U.S. Army Human Resources Command (HRC), 13 February 2015, 25 August 2015, and 18 October 2016 * Patient Movement Record * Letter from Prudential, Office of SGLI * Request for TSGLI to HRC, 26 February 2015 * Service Medical Records * Letter from an Independent Nurse Reviewer * Applicant Declaration * Civil Action Opinion and Order * Photographs\ * Civil Action Memorandum Opinion and Order 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. The applicant states the TSGLI office has denied his claims for burns to over 20% of his body and face. The finding focuses on a quick assessment during treatment of multiple injuries that carried into subsequent medical records by non-doctors without an evaluation rather than a doctor that made an evaluation of 20-25% at a later time. a. The denial of the TSGLI claim is unjustified in light of the stronger evidence which demonstrates burns to over 20% of the applicant’s body and face. Pictures and statements from the applicant and an independent nurse reviewer are discounted and selective medical records have been ignored or disregarded. The 10-19% rating that is copied and pasted in the initial records cannot be considered stronger evidence than a doctor’s assessment based on an actual evaluation. b. Please pay particular attention to the medical record outlines, statements, and medical research and analysis by the independent nurse reviewer as well as recent court decisions. The applicant requests to tell his story first-hand rather than basing a denial off of paper. 3. The applicant enlisted in the Regular Army on 15 May 2009. He held military occupational specialty 11B (Infantryman). 4. He served in Afghanistan from 2 August 2010 to 3 May 2011. On 28 April 2011, he suffered a mounted IED blast exposure and was trapped under a vehicle. This caused second degree burns to his left chest, left abdomen, and left arm. 5. The applicant provides his service medical records, which show his treatment history, medications, progress notes, and summary. He also provides his patient movement record, which shows his history, personal information, and diagnosis. 6. On 4 December 2012, an informal PEB was convened at Brooke Army Medical Center, Fort Sam Houston, TX. The board found the applicant was physically unfit and recommended a rating of 80% and that he be placed on the TDRL with a re- examination during September 2013. a. The board determined the following medical conditions to be unfitting: * Post-traumatic stress disorder (PTSD), 50%, attributed to combat stressors encountered during Afghanistan; it renders the applicant unable to reasonably continue military service due to irritability, anxiety attacks, social withdrawal, nightmares, sleep difficulty, avoidance symptoms, hypervigilance * Deep nonlinear scars of the left lower extremity due to burns, 30%; he was injured during Afghanistan due to an improvised explosive device (IED) explosion; he sustained multiple second degree partial thickness burns on his torso, left upper extremity, and both lower extremities * Deep nonlinear scars of the left upper extremity, due to burns; 20%, injured in IED explosion in Afghanistan, sustained multiple second degree partial thickness burns on his torso, left upper extremity, and both lower extremities * Superficial nonlinear scars of the right lower extremity, 10% * Superficial nonlinear scars of the posterior torso, 0% * Superficial nonlinear scars of the anterior torso, 0% * Superficial nonlinear scars of the left lower extremity, 0% * Linear scars of the left upper extremity, 0% b. The PEB considered medical evaluation board (MEB) diagnoses 3-8 (sensorinueural hearing loss, deviated nasal septum, lumbar strain, peripheral neuropathy, left arm, crush injury, left hand – 4th and 5th digits, and erectile dysfunction) are not associated with profile limitations and do not impact his ability to perform any one of the ten functional activities. The MEB has indicated these conditions meet medical retention standards. Therefore, these conditions are not unfitting. c. The PEB makes the following findings: * The disability disposition is based on disease or injury in the line of duty in combat with an enemy of the U.S. and as a direct result of armed conflict or caused by an instrumentality of war and incurred in line of duty during a period of war * Evidence of record reflects the Soldier was not a member or obligated to become a member of an armed force or Reserve therof * The disability did result from a combat-related injury d. The ratings were combined in accordance with the Veterans Affairs Schedule of Rating Disabilities (VASRD). The PEB recommends placement on the TDRL because the Soldier’s disability is not sufficiently stable for final adjudication from a disability percentage perspective. This is not a permanent rating or retirement. The disposition of the Soldier’s disability rating and retirement status can change when the case is finalized and the Soldier is removed from the TDRL. Based upon the results of the future TDRL evaluation, the PEB may find the Soldier fit for duty; recommend permanent retirement, or recommend the Soldier remain on the TDRL for another period of time. e. The applicant concurred and waived a formal hearing of his case on 6 December 2012. He did not request reconsideration of his VA ratings. 7. On 25 February 2013, the applicant was honorably retired under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), chapter 4 for disability, temporary (enhanced). He completed 3 years, 9 months, and 11 days of active service. 8. On 26 February 2013, he was placed on the TDRL. 9. On 11 January 2012, the applicant, through his attorney, received a letter from Prudential’s Office for TSGLI. a. His branch of service completed evaluating the applicant’s claim for TSGLI benefits. Unfortunately, his claim could not be approved. The letter explains why he claim was not approved and what he needs to do to appeal the decision. b. Burns. His claim for burns was not approved because his loss did not meet the TSGLI standard. Under TSGLI, burns are defined as 2nd degree burns to at least 20% of the face or 20% of the body. Because evidence indicates he had burns to 15% of his body, his branch of service could not approve his claim. c. Other traumatic injury (OTI). His claim for the inability to perform activities of daily living (ADLs) for 60 days or more due to traumatic injury (other than traumatic brain injury) was not approved because his loss did not meet the standards for TSGLI. To qualify, a claimant must have been unable to independently perform at least two ADLs for at least 60 consecutive days. The claimant is considered unable to perform an activity independently only if he or she requires at least one of the following, without which they would be incapable of performing the task: * Physical assistance (hands-on) * Stand-by assistance (within arm’s reach) * Verbal assistance (must be instructed) d. His inability to perform two or more ADLs for at least 60 days must also have been certified by a medical professional. The 30-day loss of ADLs, although found by his branch of service, is not payable as that loss cannot be combined with previous claim paid for 15 days’ hospitalization. The hospitalization benefit is a proxy for the first increment under the loss of ADLs. 10. On 13 February 2015, HRC notified the applicant, through counsel, they received his request for TSGLI benefits and as stated in the previous decision letter, if he disagreed, he could appeal to HRC or file suit in federal court. 11. The applicant appealed the decision to HRC on 26 February 2015, through his attorney. He states, in pertinent part, his medical records were reviewed by an independent registered nurse and confirmed the extent of his second degree or worse burns, exceeding 20%. In connection with his application to HRC, he provided: a. A declaration from the applicant, which states, on 28 April 2011 while in Afghanistan, he suffered serious burns and now has scars. When he applied, he thinks it was a previous doctor that wrote down 15^ total body surface area. He has been told by others that it is more. b. An independent nurse review summary, which states, in pertinent part, she reviewed the applicant’s medical records and calculated far more than 20% total body surface area burns. 12. On 25 August 2015, HRC notified the applicant, through counsel, they evaluated the applicant’s claim for TSGLI for the event in Afghanistan on 28 April 2011. It was previously approved for $25,000 for 15 consecutive days of hospitalization. Other losses claimed were not approved. This letter will explain why the losses were not approved, his rights to appeal, and the general requirements. 13. On 18 October 2016, HRC notified the applicant, through counsel, they received the applicant’s appeal for TSGLI. After reviewing the claim and supporting documentation, the adjutant general was unable to overturn the previous adjudication concerning losses associated with burns to the chest, back, left arm, and both legs from the traumatic injury that occurred on 28 April 2011 in Afghanistan. 14. On 13 March 2015, the applicant was removed from the TDRL and placed permanently retired at 90% disability. 15. The applicant provides: * 38 C.F.R. 9.20, which outlines the traumatic injury protection requirements * TSGLI Procedural Guide, which outlines the process of TSGLI * Civil Action Opinion and Order, in which the presiding district court judge affirms the Army’s decision to deny TSGLI benefits * Civil Action Memorandum Opinion and Order, in which the presiding district court judge grants summary judgement in favor of the plaintiff of TSGLI benefits * Photographs of the applicant and his body, specifically injury locations 16. 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 up to $100,000 to severely injured Servicemembers’ who meet the requisite qualifications set forth by the Department of Defense. A service member must meet all of the requirements to be eligible for payment of TSGLI. 17. By regulation, applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. 18. Based on the applicant’s condition(s)/contention(s), the Army Review Boards Agency 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), Healthcare Artifact and Image Management Solution system (HAIMS), 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. Through counsel, he is seeking the $25,000 TSLGI benefit for having sustained 2nd degree (partial thickness) or worse burns over 20% or more of the body including the face and head. 3. The Record of Proceedings (ROP) details the circumstances of the case and the prior denials. The applicant has previously received a payment of $25,000 for inpatient hospitalization of 15 consecutive days or more. 4. The applicant sustained second degree burns after becoming trapped under his mine-resistant ambush protected (MRAP) vehicle which had been attacked with a mounted improvised explosive device (IED). The applicant was initially evacuated to Bagram, then thru Landstuhl Army Regional Medical Center to Brooke Army Medical Center in San Antonio, Texas for definitive care. 5. A claimant for TSLGI is eligible for the burn benefit when he/she sustains 2nd degree (partial thickness) or worse burns over 20% of the body including the face and head or 2nd degree (partial thickness) or worse burns 20% of the face only. 6. For determining if a member has a loss of TSGLI program, Title 38 of the Code of Federal Regulation requires documentation addressing the specific injury/injuries sustained as a result of the traumatic event. This documentation consists 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. 7. Counsel states: “The TSGLI office has denied {Applicant}'s claims for burns to over 20% of the body and face. The finding focuses on a QUICK ER assessment during treatment of multiple injuries that is carried into subsequent medical records by non- doctors WITHOUT AN EVALUATION, rather than Dr. who MADE AN EXAMINATION of 20-25% at a later time.” On the current TSLGI application, counsel has claimed the applicant sustained burns to 40% of his TBSA. These assertions are contradicted by the medical evidence submitted by counsel. 8. The applicant stated in his initial 25 May 2011 TSLGI claim: “On 28 April 2011, 0830 hours, Kandahar, Afghanistan, I was involved in an IED {improvised explosive device} blast. I sustained 15% TBSA {total body surface area} burn injuries to my left arm, both legs, back and chest.” The applicant claimed and received the benefit for 15 or more consecutive days of hospitalization, but made on claim related to his burns per se. The applicant claimed the burn benefit on his 13 October 2011 TSLGI application for burns affecting 15% of his TBSA. The medical provider who validated this claim (Dr. S.), stating he had observed the applicant’s loss, hand wrote “Received 15% TBSA burns” on 10 June 2011. 9. Multiple contemporaneous medical documents from a number of health care professionals are in agreement with the applicant’s claim. 10. Patient movement records from 28 April 2011, 29 April 2011, and 4 May 2011 all document burns to 15% of his TBSA. 11. The Brooke Army Medical Center Burn Unit discharge summary shows the applicant was admitted on 4 May 2011 and discharged on 19 May 2011. His admission diagnosis was “15% TBSA” burns. Their 15% calculation was based on evaluation and treatment of burns to the anterior aspect of his left thigh and leg crossing the knee, scattered over the right lower extremity, posterior aspect of the left forearm, right side of the chest, and posterior aspect of the right shoulder and axilla. The summary of his burn care while an inpatient: “15% total mixed partial and full thickness burns. The patient underwent excision and grafting to treat the full thickness burns. The burns are responding well to topical treatment.” 12. For unclear reasons, documentation from this inpatient treatment period were not submitted with the application. 13. Brooke Army Medical Center {BAMC) is one of the premier burn treatment centers in the world, treating both military and civilian burn casualties. It is also home to the U.S. Army Institute of Surgical Research Burn Center. From the Center’s website (https://usaisr.amedd.army.mil/12_burncenter.html) “The United States Army Institute of Surgical Research Burn Center serves as the sole facility caring for combat burn casualties, beneficiaries and civilian emergencies within the Department of Defense. The Burn Center provides interdisciplinary care by a team of approximately 300 medical professionals providing cutting edge surgical services and promoting optimal recovery, restoration of function, and community reintegration of our burn survivors.” 14. The note counsel referenced as “Dr. who MADE AN EXAMINATION of 20-25% at a later time” is a 20 May 2011 administrative encounter which Dr. called a “Meet and greet on combat related burns.” While counsel states he “MADE AN EXAMINATION” of the applicant’s burns upon which he made this 20-25% TBSA burn assessment, Dr. made no such examination. He wrote “… multilevel burns both lower and upper extremities which are heavily bandaged at this time, 20-25% TBSA.” This was simply an estimate based upon the applicant’s bandages. As noted above, Dr. stated the applicant had burns over 15% TBSA in June 2011 when he attested on the applicant’s 13 October 2011 TSLGI application. 15. Counsel submitted an opinion from an independent nurse reviewer who calculated the applicant had burns over 39.75% of his TBSA using the Lund-Browder burn chart: * Lund-Browder Burn Chart for {Applicant} {*Note: Lt = Left, Abd = Abdomen} * Anterior Trunk 6.50% (1/2 of 13%) (Includes Lt Upper Anterior Chest/Lt Abd) * Posterior Trunk 6.50% (1/2 of 13%) (Includes Lt Upper Back/Flank) * Left Arm 2.0% (1/2% Lower Arm/.5% Upper Arm) * Left Thigh 4.75% (Anterior: 1/2 of Thigh) * Left Lower Leg 3.50% (Anterior: 1/2 of Lower Leg) * Right Thigh 4.75% (Anterior: 1/2 of Thigh) * Right Lower Leg 3.50% (Anterior: 1/2 of Lower Leg) * Right Thigh 4.75% (Posterior: 1/2 of Thigh) * Right Lower Leg 3.50% (Posterior: 1/2 of One Lower Leg) 39.750%TBSA 16. Several of these supposed burned areas were not identified by the professionals who cared for the applicant at Brooke Army Medical Center. The professionals only noted burns to the anterior aspect of his left thigh and leg crossing the knee, scattered over the right lower extremity, posterior aspect of the left forearm, right side of the chest, and posterior aspect of the right shoulder and axilla. In addition, the reviewer inappropriately counts the right thigh and right leg twice, meaning the entire surface of the right leg was burned when BAMC noted only “scattered burns” on this extremity. Finally, when a burned area was correctly identified, the reviewer grossly misapplied the chart. 17. It is the opinion of the Agency Medical Advisor that there is insufficient probative evidence the applicant sustained burns over more than 15% of his TBSA. Hence, it is recommended the request for an additional TSGLI payment should be denied. BOARD DISCUSSION: After reviewing the application, all supporting documents, and the 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. Based on the preponderance of evidence available for review and the findings and conclusion of the medical advisor, 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 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 up to $100,000 to severely injured Servicemembers’ who meet the requisite qualifications set forth by the Department of Defense. A service member must meet all of the requirements to be eligible for payment of TSGLI. a. Activities of Daily Living (ADL) are routine self-care activities that a person normally performs every day without needing assistance. There are six basic ADL: eating, bathing, dressing, toileting, transferring (moving in and out of bed or chair) and continence (managing or controlling bladder and bowel functions). b. A member is considered to have a loss of ADL if the member requires assistance to perform at least two of the six ADLs. 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. The guide defines physical assistance as when a patient requires hands-on assistance from another person. Standby assistance is defined as when a patient requires someone to be within arm’s reach because the patient’s ability fluctuates and physical or verbal assistance may be needed. Verbal assistance is defined as when a patient requires verbal instruction in order to complete the ADL due to cognitive impairment. Of note without these verbal reminders, the patient would not be able to perform the ADL. * For ADL unable to bathe independently, if assistance is required to bathe more than one part of the body or get in or out of the tub or shower by requiring physical, stand-by or verbal assistance from another person * For ADL unable to maintain continence independently, he is not able to manage a catheter or colostomy bag independently or is partially or totally unable to control bowel and bladder function * For ADL unable to dress independently, he is unable to get and put on appropriate clothing (i.e. dress for the appropriate season) socks or shoes. However, he may have help tying his shoes * For unable to eat independently, he is unable to get food from plate to mouth, or take liquid nourishment from a straw or cup * For unable to toilet independently, he is not able to go to and from the toilet, get on and off the toilet, clean himself after toileting, or get clothing off and on before and after toileting * For unable to transfer independently, he is not able to move into our out of a bed or chair 3. Army Regulation 15-185 (ABCMR) prescribes the policies and procedures for correction of military records by the Secretary of the Army, acting through the ABCMR. The ABCMR may, in its discretion, hold a hearing or request additional evidence or opinions. It states further, in paragraph 2-11, that applicants do not have a right to a hearing before the ABCMR. The Director or the ABCMR may grant a formal hearing whenever justice requires. //NOTHING FOLLOWS//