IN THE CASE OF: BOARD DATE: 16 August 2023 DOCKET NUMBER: AR20220010848 APPLICANT REQUESTS: approval of his claim for Traumatic Servicemembers’ Group Life Insurance (TSGLI) based on a traumatic injury resulting in losses of activities of daily living (ADL). APPLICANT'S SUPPORTING DOCUMENT(S) CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * TSGLI applications * DD Form 214 (Certificate of Release or Discharge from Active Duty) * approximately 600 pages of medical records * Department of Veterans Affairs (VA) records * VA TSGLI Protection Program Year-Ten Review, dated January 2018 FACTS: 1. The applicant's states the evidence submitted clearly shows that the injury and loss of ADLs in question clearly meets the criteria for payment of benefits under the TSGLI schedule of losses; therefore, the applicant reasserts his right to said benefits and requests payment of the same. 2. In letters addressed to the Office of Servicemember's Group Life Insurance (SGLI) and the U.S. Army Human Resources Command (AHRC), counsel states: a. Regarding the denial of a claim for TSGLI benefits submitted by the applicant for injuries he sustained in the line of duty on 17 January 2009, they respectfully request this denial be overturned and the benefits for which he clearly qualifies be paid without further delay or denial. b. On 17 January 2009, while serving as a member of 173rd Airborne Brigade Combat Team, the applicant was directed to take part in an airborne training operation as part of his required duties. During the 1,200 ft. jump, he experienced a "cigarette roll" parachute malfunction, which occurs when a parachute deploys fully from the bag but fails to open, providing the jumper with very little drag. His parachute failed to adequately deploy until he was approximately 150 to 200 feet from the ground, thereby plunging him toward the ground at a speed which was significantly faster than the normal rate of descent. This increased rate of descent caused him to hit the ground with extreme impact. He was rendered unconscious by the impact of the landing. When he regained consciousness, he experienced severe pain in his right hip and right knee, and was unable to move his right leg. An MRI showed that he had sustained a severe quadriceps and patellar tendon rupture with partial detachment of the quadriceps tendon as a direct result of the extreme impact he suffered during the above-mentioned landing. c. The applicant's right leg was immediately placed in a full leg brace, a device designed specifically to restrict movement in an effort to prevent further injury. He was required to utilize this brace at all times pending surgery to correct the damage to his quadriceps and patellar tendons. He underwent surgery to repair the severe damage to his right quadriceps and patellar tendons in August 2009. He was required to utilize the aforementioned full leg brace for an additional 8 weeks following surgery. In regard to this fact, they hereby assert that the brace he was required to utilize for this extended period of time is in fact an immobilizing device, and is not to be considered adaptive equipment/adaptive technology as such devices are defined in Title 29 U.S. Code section 3002(4) (29 USC § 3002(4): "29 USC § 3002(4): The term "Assistive Technology Device" means any item, piece of equipment, or product system, whether acquired commercially, modified, or customized, that is used to increase, maintain, or improve functional capabilities of individuals with disabilities." d. Following the severe injuries the applicant sustained in the line of duty as a result of a parachute malfunction and subsequent high impact landing, as well as the surgical intervention required to repair said injuries, he was completely unable to perform multiple ADLs, to include dressing/undressing, bathing, toileting, and transferring for a period of not less than 120 days without full and/or stand-by assistance from another individual. Despite ongoing medical treatment, he sustained permanent muscle damage, and continues to suffer the effects of said damage to present date. e. In regard to the denial of the applicant's previous application for TSGLI benefits, in which it is stated that, "medical documentation does not support your inability to perform ADLs for 30 consecutive days," they hereby educe the provisions of 38 USC § 5107(b), which states that while a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. (b) Benefit of the Doubt. - The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. f. According to the TSGLI Procedures Guide, in order to assert a claim for benefits for inability to perform activities of daily living, a claimant "must have been unable to independently perform at least two ADLs for at least 30 consecutive days" and that, inability to perform two or more ADLs for at least 30 days must also have been certified by a medical professional." It is their assertion that the attached medical documentation and certification from the applicant's treating physician, clearly constitutes sufficient documentation under the provisions of 38 USC § 5107(b) to support his claim for benefits under the TSGLI program. g. There has been some speculation as to whether 38 USC § 5107(b) applies to TSGLI claims. In their TSGLI Year-Ten Review, the VA Insurance Service staff provided clear guidance on the application of the Benefit of the Doubt doctrine to claims for TSGLI benefits. The report states as follows: "38 USC 5107(b) establishes the general evidentiary standard for benefits decisions made by VA. This standard also applies to TSGLI, which falls under the purview of Title 38." The VA implemented this recommendation in March 2017 with updates to the TSGLI Procedures Guide. (Department of Veterans Affairs, Veterans Benefits Administration, Servicemembers Group Life Insurance Traumatic Injury (TSGLI) Protection Program Year-Ten Review (2018)). h. The Court has held that a failure to apply the benefit of the doubt rule when reviewing an application for benefits administered by the Secretary of Veterans' Affairs, or to set forth clear reasons for not applying it, constitutes error. Additionally, when any agent, in reviewing an application of benefits administered by the Secretary of Veterans' Affairs, can cite no evidence or facts by which to impeach or contradict a claim, there is no justifiable basis upon which to deny application of the doctrine under 38 C.F.R. § 3.102. (Sheets v. Derwinski, 2 Vet. App. 512, 516-17 (1992)). i. Given the substantial evidence regarding the applicant's injuries and consequential loss of ability to perform ADLs, he clearly meets the criteria for eligibility set forth in the TSGLI Schedule of Losses. Therefore, they reassert his right to these benefits, and respectfully request you honor the contract between the Soldier and the TSGLI program. 3. The applicant enlisted in the Regular Army on 22 June 2006. 4. The applicant submitted a TSGLI application in November 2012 and claimed he required physical assistance (hands on) performing ADL from 10 April to 10 June 2012. Specifically, he required assistance bathing, dressing, toileting, and transferring. He provided the following statement in support of his application: a. In January 2009, while attending airborne school, he had a bad landing, injuring his right knee and thigh. After the injury, he began having hip and back pain which progressed. In 2011, he was getting treatment for his back more often after falling from a rope ladder in full kit while conducting the Ranger physical assessment test. After the discovery of damaged discs as well as fractures in lumbar region of his spine, he had a lumbar spine fusion on his L5-S1. After being bed ridden in the hospital for several days after his surgery, he was placed on convalescent leave for 30 days. During and after convalescent leave, he needed help moving around, getting out of bed, getting to the bathroom, showering, and dressing. His wife assisted him constantly during his convalescent leave to complete these tasks. b. Towards the end of convalescent leave, he started moving around better with the assistance of a walker, however, he needed assistance showering, getting dressed, and getting out of bed until three weeks after his convalescent leave. Luckily, being on a rear detachment unit, his wife could take him to work for accountability and he was allowed to go back home until he was getting stronger. He also had surgery on his right knee after the incident in airborne school and he was receiving treatment for his right and left hips. His physician recommended hip surgery. 5. The TSGLI application was signed by a medical professional who indicated he had observed the applicant's loss. 6. On 12 March 2013, the AHRC Special Compensation Branch (TSGLI) informed the applicant he was ineligible for compensation under the TSGLI program because he did not suffer a scheduled loss within two years (730 days) of is traumatic event. The documentation provided indicated that his claimed traumatic event occurred in January 2009 and his claimed losses began/occurred on 10 April 2012, which was not within two years of the traumatic event. 7. The applicant submitted another TSGLI application, dated 24 February 2014, and claimed he required physical assistance bathing, dressing, toileting, and transferring from 10 January to 10 June 2012. He provided the following statement in support of his application: I sustained a back injury in March-April 2012, I fractured a vertebrae in my spine and had several damaged discs. I had my spine fused together on April 10th 2012 on my LS-S1. l was left off of a deployment because of this and was placed on lengthy convalescent leave. I was then attending work on an accountability basis only due to recovery not working out as planned. This lasted until 10 June 2012. 8. On 13 March 2014, the AHRC Special Compensation Branch (TSGLI) informed the applicant that his claim could not be processed because his TSGLI application was incomplete. Specifically, his application did not include a narrative identifying the traumatic event. 9. On 25 March 2014, the applicant submitted a portion of a TSGLI application stating the following: Sudden onset of extreme back pain resulting in not being able to move from laying position. No warning of this coming. Ended up having fractures in spine and crushed discs requiring surgery. 10. On 4 June 2014, the AHRC Special Compensation Branch (TSGLI) denied the applicant's TSGLI claim. The denial letter informed the applicant the following: a. The Army TSGLI program office has reconsidered the decision of your previous claim. At this time, we are unable to overturn the previous adjudication. The information below explains why your claim was disapproved and the procedure if you choose to appeal this decision. b. Why Your Claim Was Not Approved: The documentation provided for your event which took place on January 2009 in Georgia did not indicate that you suffered a loss within 730 days of the traumatic event. Because the documentation indicates that your loss occurred/began on 10 January 2012, more than two years (730 days) after your traumatic event, your claim could not be approved. You mention a re-injury in March of 2012, however there is no evidence of this in the records provided. If you are now claiming that the losses claimed are due to a different event than what was previously claimed, you must provide evidence of the injury, as well as documentation which supports a clear connection between the losses and the claimed event. 11. The applicant was retired due to physical disability on 22 January 2015. 12. The applicant, through counsel, submitted a TSGLI Appeal Request Form, dated 7 October 2021, claiming he required hands on and stand by assistance from 17 January to 10 September 2009 for bathing, dressing, and toileting. The appeal form was signed by a medical professional who indicated she had not treated the applicant for his loss but had reviewed his medical records. In support of the appeal, counsel provided the letter, which was incorporated in paragraph 2 of this Record of Proceedings, in addition to approximately 600 pages of medical records and a statement from the applicant's wife, wherein she describes the assistance she provided to the applicant. The complete applicant's wife letter was provided to the Board for their review and consideration. 13. On 2 March 2022, the AHRC, Office of The Adjutant General, responded to the applicant's counsel appeal request. The Adjutant General (TAG) stated: a. The Army TSGLI program office has received your appeal request for the applicant. After reviewing the claim and supporting documentation, I have found his claim concerning losses associated with ADL from the traumatic event on 17 January 2009, at Fort Benning, GA, does not qualify for TSGLI payment. b. Loss of TSGLI program-specific ADL is defined in Title 38 of the Code of Federal Regulation (CFR), section 9.20 (d)(6)(vi) as follows "the term inability to carry out activities of daily living means the inability to independently perform at least two of the six following functions: (A) Bathing, (B) Continence, (C) Dressing, (D) Eating, (E) Toileting, (F) Transferring in or out of a bed or chair with or without equipment." The TSGLI Procedural Guide, Part 4 (7)(a) (page 18) further clarifies "if the patient is able to perform the activity by using accommodating equipment [such as a cane, walker, commode, etc.] or adaptive behavior, the patient is considered able to independently perform the activity." c. Qualifying Other Traumatic Injury (OTI) related ADL loss claims will pay $25,000 at the 30, 60, 90, and 120 consecutive day milestones, per Title 38 of the CFR, section 9.20 (f)(20) and the TSGLI Procedural Guide, Part 4 (7)(g) (page 22). d. Title 38 of the CFR, Section 9.20 (d)(2) states the eligibility requirements for payment of traumatic 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." The TSGLI Procedural Guide, Part 1 (page 5) further clarifies a direct result as "there must be a clear connection between the traumatic event and resulting loss and no other factor aside from the traumatic event can play a part in causing the loss." Title 38 of the CFR, Section 9.20 states in (d)(4) the member "must suffer a scheduled loss within two years of the traumatic injury." e. Why the Claim Was Not Approved: Concerning OTl-related ADL loss, the medical record does not support basic ADL loss at the 30 day milestone. For this case, the applicant's only significant injury was to his right knee, thus indicating his arms, back, left leg, right hip, and right ankle were uninjured and fully functioning. The medical record showed he was not admitted to the hospital for this injury immediately following the traumatic event, but was treated in an outpatient status. Also, the medical record, particularly in the 20 January 2009 (day 4 after the traumatic event), Ambulatory Primary Care Note and the 28 January 2009 (day 12), Primary Care Note, documented this injury was treated with a knee brace and pain medicine, but he was not given any other assistive devices (i.e. crutches, wheelchair, etc.). This would show that he was ambulatory and could fully weight-bear on the right leg. This outpatient status and full weight-bearing on the right leg indicated this injury lacked the severity to prevent independent basic ADL performance. f. Although he was initially given a knee brace and was advised to use crutches to alleviate his right leg limp at the 24 March 2009 orthopedic visit, these assistive devices would not prevent bathing, dressing, or toileting independently. On the contrary, they would help his independence with ambulating to the bathtub/shower and toilet, transferring onto/off of the toilet, and acquiring his clothing for dressing. In addition, the fact that he was placed in a knee brace for a significant amount of time would not prevent this basic ADL performance, because patients with this type of injury are allowed to remove the knee brace and bend the knee in a controlled setting to perform dressing, bathing, and toileting, then re-apply the brace after the ADL is performed. g. Moreover, the 28 January 2009 Primary Care Note documented there was no right knee instability despite diminished right quadriceps strength and that his right knee active range of motion (ROM) was only limited in extension (straightening his leg). This extension limitation was more precisely documented in the 17 February 2009 Primary Care Note, where his right knee ROM was 5 degrees from full extension to 100 degrees of flexion. This functional ROM in his only significantly injured joint along with his ability to fully weight-bear on this joint would allow him to perform bathing, dressing, and toileting independently. h. Furthermore, the 28 January 2009 Primary Care Note recorded that he was placed on a no run/jump/march profile at the visit. This indicated he was to return to work in a restricted status. A person, who can work even in a limited capacity, has the physical ability to perform basic ADL in at least a modified independent manner per TSGLI guidelines. Thus, he would be able to perform basic ADL independently prior to the 30 day milestone after his traumatic event. Additionally, the medical record showed that he had progressive improvement of his condition and symptoms without any significant complications during the initial six to seven months following the traumatic event. i. Although his 21 August 2009 right knee surgery would represent the start of another potential ADL loss period, the medical record does not support basic ADL loss for 30 days after this event either. The Physical Therapy Note from 26 August 2009 (day 7 after the surgery), showed his right knee ROM was from full extension to 110 degrees flexion, and his pain level was 3 out of 10. It is noted he was wearing a knee brace, but he was not using any other assistive device, which indicated he was fully weight­bearing. Once again, a person, who has functional ROM, full weight-bearing, and mild pain in his only injured joint, should be able to perform basic ADLs in at least a modified independent manner. Thus, he was able to perform basic AD Ls independently prior to 30 days after his right knee surgery on 21 August 2009. j. Even though he developed pain in both hips after his 21 August 2009 knee surgery, this pain would not [prevent] independent basic ADL performance. First, he did not first report the hip pain until the 29 September 2009 Physical Therapy Note, and the pain was not of the severity to prevent basic ADLs as demonstrated in the 20 October 2009 Physical Therapy Note, where he was fast walking on a treadmill at a 15 minute per mile pace. Therefore, his claim of OTl-related ADL loss does not qualify for TSGLI payment at the 30 day milestone or beyond. k. The applicant's wife's statement was reviewed and considered for this adjudication. Unfortunately, there are some discrepancies between her letter and the medical record and between the claimed injury and surgery in her letter and the applicant's TSGLI application. First, she claims he injured his legs, knees, hips, shoulder, and spine during the January 2009 parachute landing. However, the medical record documents his only injury following the parachute landing was to his right knee and thigh muscle. It showed he later developed pain in both hips approximately eight months after the traumatic event, but there is no documentation of any left leg, shoulder, or spine injury immediately following the traumatic event. Second, her letter primarily discussed the assistance she provided him after a spinal surgery, but the applicant's TSGLI application claimed ADL loss associated with his right knee and thigh injury. Third, her letter does not list any dates associated with his spine condition or spinal surgery. According to the medical record, he first complained of back pain in the Troop Medical Clinic Note from 19 May 2011 with no specific trauma related to the back pain. He then had spine surgery on 10 April 2012. Unfortunately, the medical record showed no direct connection between his spine condition and the traumatic event. Furthermore, the back pain and spinal surgery occurred over two years (730 days) after the traumatic event. Thus, any potential ADL loss caused by the spinal surgery would not be eligible for TSGLI payment. Therefore, the wife's statement is not definitive proof that he qualified for TSGLI ADL loss benefits at any milestone. 14. The TAG also advised the applicant and counsel of their right to appeal to the Army Review Boards Agency (ARBA) and/or federal district court. 15. MEDICAL REVIEW: a. 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, 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 the Interactive Personnel Electronic Records Management System (iPERMS). b. The applicant is applying to the ABCMR requesting reversal of the United States Army Human Resources Command’s prior denials of his applications for benefits from the Traumatic Servicemember’s Group Life Insurance (TSGLI) program. He is seeking the $100,000 TSLGI benefit for the inability of independently perform the three activities of daily living (ADLS) of bathing, dressing, and toileting with or without activity modification and/or assistive devices for more than 120 days due to a traumatic injury other than traumatic brain injury (OTI) on 17 January 2009 (17 January 2009 thru 10 September 2009); and the $100,000 benefit for more 120 days of continuous inpatient hospitalization due to a traumatic injury other than traumatic brain injury (OTI) on 17 January 2009 (17 January 2009 thru 21 August 2009). c. The Record of Proceedings and previous denials outlines the circumstances of the case. The applicant has not received a payment from the TSLGI program. The maximum TSGLI benefit amount payable for a single injury listed on the schedule of losses is $100,000. The first milestone for continuous inpatient hospitalization due to a traumatic injury other than traumatic brain injury (OTI) is 15 days. This would be 31 January 2009 for the initial injury and 4 September 2009 following his outpatient knee surgery. The first ADLS benefit milestone for the inability to independently perform two or more ADLS with or without activity modification and/or assistive devices due to a traumatic injury other than traumatic brain injury (OTI) is at 30 days. This would be 15 February 2009 for the initial injury and 19 September 2009 following his outpatient knee surgery . (See 38 U.S.C. 1980A(d)(1) and 38 CFR 9.20(f)(18, 21)). d. According to counsel, the applicant was injured on 17 January 2009 in a parachute accident in which he sustained a mild traumatic brain injury and injuries to his right lower extremity. She states an “MRI showed that SSG [Applicant] had sustained a severe quadriceps and patellar tendon rupture with partial detachment of the quadriceps tendon” going on to say: “SSG [Applicant]'s right leg was immediately placed in a full leg brace, a device designed specifically to restrict movement in an effort to prevent further injury. He was required to utilize this brace at all times pending surgery to correct the damage to his quadriceps and patellar tendons. SSG [Applicant] underwent surgery to repair the severe damage to his right quadriceps and patellar tendons in August 2009. He was required to utilize the aforementioned full leg brace for an additional 8 weeks following surgery.” e. Contrary to counsel’s statement, the applicant’s 22 January 2009 right knee MRI shows neither a “severe” injury to the quadriceps tendon nor damage to the patellar tendon. “There is a tear of the vastus lateralis from its insertion onto the patella. This tear appears to be completed. The remainder of the visualized quadriceps muscles appear to be intact … The patella tendon appears normal also. f. The applicant underwent outpatient knee surgery on 21 August 2009 after which he was again placed in a brace. g. A member who is hospitalized as an inpatient for 15 consecutive days as the result of a traumatic injury is eligible for a $25,000 payment under TSGLI. Inpatient hospitalization days include transportation time from the site of the injury to the hospital, transfers from one hospital to another, the day of admission and the day of release. Combinations of inpatient hospitalization and ADL loss must be continuous (occur on consecutive days) to qualify for the second ADL milestone payment. Inpatient hospitalization for fewer than 15 days and inpatient hospitalization for non-consecutive days is not eligible for the TSGLI benefit. h. The applicant was treated as an outpatient on the day of injury and the day of his knee arthroscopy. There is no evidence the applicant was continuously hospitalized for 15 days, much less the 217 days claimed by counsel. i. A claimant for TSLGI is considered unable to perform an activity independently only if he or she, with or without activity modification and/or assistive devices, requires at least one of the following without which they would be incapable of performing the task: * Physical assistance (hands-on) or, * Stand-by assistance (within arm's reach) or, * Verbal assistance (must be instructed) j. For determining if a member has a loss of TSGLI program specific ADLs, Title 38 of the Code of Federal Regulation, section 9.20 states "the term inability to carry out activities of daily living means the inability to independently perform at least two of the six following functions: (A) Bathing, (B) Continence, (C) Dressing, (D) Eating, (E) Toileting, (F) Transferring in or out of a bed or chair with or without equipment." The TSGLI Procedural Guide further clarifies "if the patient is able to perform the activity by using accommodating equipment (such as a cane, walker, commode, etc.) or adaptive behavior, the patient is considered able to independently perform the activity." k. Under the laws and regulations governing the TSGLI Program (38 U.S.C. 1980A(b)(1)(H), (b)(2)(D), and 38 CFR 9.20(d), (e)(6)(vi), (f)(17) and (f)(20)), documentation must demonstrate the inability to independently perform at least two of the six ADLs (Eating, Bathing, Dressing, Toileting, Transferring, and Continence). Documentation addressing the specific injury/injuries sustained as a result of the traumatic event and providing a timeline of treatment and recovery during the period of claimed inability to ADLs is required in order to approve a claim. The timeline of treatment would consist of notations from licensed medical providers such as physicians, physician assistants, nurse practitioners, registered nurses, etc. Supporting documentation can also be submitted by other medical providers acting within the scope of their practice pertinent to the sustained injury/injuries, to include occupational/physical therapists, audiologists, or speech/language pathologists. l. ALHTA encounters four and twelve days after his injury show the applicant was in the brace but not issued crutches or a wheelchair and had been released for duty limitations and was referred to physical therapy. The injury was being treated conservatively as the majority of the quadriceps tendon was intact thus giving it an opportunity to heal without surgical intervention. m. The applicant had persistent medical joint pain and a repeat MRI was suspicious for a medial meniscal tear. On 21 August 2009, he underwent outpatient arthroscopy with resection of a soft tissue band (plica). The menisci were normal. n. He is noted to be wearing the brace but not utilizing any assistive devices as his 26 August 2009 physical therapy session. The review of his medical records shows he had no other injuries at the time of his initial knee injury and he was in a brace which could be removed for showering and dressing. As stated by the physician reviewing the case for The Adjutant General: “Although he was initially given a knee brace and was advised to use crutches to alleviate his right leg limp at the March 24, 2009, orthopedic visit, these assistive devices would not prevent bathing, dressing, or toileting independently. On the contrary, they would help his independence with ambulating to the bathtub/shower and toilet, transferring onto/off of the toilet and acquiring his clothing for dressing. In addition, the fact that he was placed in a knee brace for a significant amount of time would not prevent this basic ADL performance, because patients with this type of injury are allowed to remove the knee brace and bend the knee in a controlled setting to perform dressing, bathing, and toileting, then re-apply the brace after the ADL is performed.” o. A statement from the applicant’s wife was considered in this this review. It appears related to a subsequent surgery on his lumbar spine and not that on his right knee arthroscopy. While it can be assumed he had some difficulties following his initial injury and even his knee arthroscopy and that she provided assistance during his recovery, this does not rise to the TSGLI standard that the applicant was unable to perform two or more ADLs independently using accommodating equipment (such as a cane, walker, commode, etc.) and/or adaptive behavior without her assistance. p. Based on the information currently available, it is the opinion of the ARBA Medical Advisor that neither his right knee injury nor subsequent arthroscopic surgery meet the TSLGI requirements for either the hospitalization benefit or the inability to perform two or more ADLS after the 29th day following his accident or his surgery. Hence, it is recommended the request for an additional TSGLI payments 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 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 and the medical review the Board concurred with the advising official finding that neither his right knee injury nor subsequent arthroscopic surgery meet the TSLGI requirements for either the hospitalization benefit or the inability to perform two or more ADLS after the 29th day following his accident or his surgery. Evidence in the record show the applicant had no other injuries at the time of his initial knee injury and he was in a brace which could be removed for showering and dressing. Additionally, the Board noted the applicant was not utilizing any assistive devices as his 26 August 2009 physical therapy session. The record shows the applicant was returned to work in a restricted status. It was noted by the Board, that a person, who can work even in a limited capacity has the physical ability to perform basic ADL is a least a modified independent manner per TSGLI guidelines. As such, the applicant would be able to perform basic ADL independently prior to the 30-day milestone after his traumatic event. 2. Furthermore, the Board determined based on the medical opine, the applicant was placed in a knee brace for a significant amount of time would not prevent this basic ADL performance, because patients with this type of injury are allowed to remove the knee brace and bend the knee in a controlled setting to perform dressing, bathing, and toileting, then re-apply the brace after the ADL is performed. The Board found the applicant’s loss did not meet the minimum requirements for a loss of at the 30-day milestone under TSGLI standard. In addition, the Board agreed the applicant’s significant injury was to his right knee, thus indicating his arms, back, left leg, right hip, and right ankle were uninjured and fully functioning. Evidence in the medical record showed the applicant was not admitted to the hospital for this injury immediately following the traumatic event but was treated in an outpatient status. Based on the preponderance of evidence the Board agreed the applicant and his counsel did not demonstrate losses caused met the TSGLI requirements. Therefore, the Board denied relief. 3. 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. 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. The TSGLI program is an automatic provision under 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 the 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. TSGLI coverage was added to SGLI policies effective 1 December 2005 with a retroactive provision covering injuries from 7 October 2001 through 30 November 2005. 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. 2. 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 AHRC official TSGLI website lists two types of TSGLI losses, categorized as Part I and Part II. Each loss has a corresponding payment amount. 4. 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 two ADL. 5. Part II losses include traumatic injuries resulting in the inability to perform at least two ADL for 30 or more consecutive days and hospitalization due to a traumatic injury and other traumatic injury resulting in the inability to carry out two of the six ADL, which are dressing, bathing, toileting, eating, continence, and transferring. TSGLI claims may be filed for loss of ADL if the claimant is required assistance from another person to perform two of the six ADL for 30 days or more. ADL loss must be certified by a healthcare provider in Part B of the claim form and ADL loss must be substantiated by appropriate documentation, such as occupational/physical therapy reports, patient discharge summaries, or other pertinent documents demonstrating the injury type and duration of ADL loss. 6. The TSGLI Procedures Guide 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. External Force: An external force is any sudden or violent motion causing an unexpected impact from a source outside of the body and independent of body mechanics. c. Body Mechanics: Body mechanics is the use of one’s body in production of motion or posture of the body, including movements during routine daily activities. The event must involve a physical impact upon an individual. Some examples would include: an airplane crash, a fall in the bathtub, or a brick that falls and causes a sudden blow to the head. For example, a member who sprains an ankle while running in a basketball game would not be eligible for TSGLI payment because the loss was due to routine body mechanics involved in the twisting of the ankle while running. d. Direct Result: Direct result means there must be a clear connection between the traumatic event and resulting loss and no other cause, aside from the traumatic event can play a part in causing the loss. e. Traumatic Injury: A traumatic injury is the physical damage to your body that results from a traumatic event. f. Scheduled Loss: A scheduled loss is a condition listed in the TSGLI Schedule of Losses if that condition is directly caused by a traumatic injury. The Schedule of Losses lists all covered losses and payment amounts. 7. Section 1556 of Title 10, United States Code, requires the Secretary of the Army to ensure that an applicant seeking corrective action by 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 ABCMR applicants (and/or their counsel) prior to adjudication. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20220010848 1 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1