IN THE CASE OF: BOARD DATE: 16 November 2021 DOCKET NUMBER: AR20200008077 APPLICANT REQUESTS: through counsel * approval of his Traumatic Servicemembers' Group Life Insurance (TSGLI) claim in the amount of $100,000 for loss of activities of daily living * personal appearance before the Board APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record), 13 May 2020 * Power of Attorney, Applicant, 31 July 2018 * Applicant's Self-authored Statement, 22 February 2019 * Counsel Statement, 25 February 2019 * Applicant's Wife Self-authored Statement, 27 February 2019 * 42 pages of Service Medical Records, 1 August 2003 to 2008 * Extract of 38 Code of Federal Regulations (CFR), Section 9.20 * Counsel's undated Summary List of Medical Records Received from the Veterans' Administration (VA), and medical treatment records consisting of approximately 2250 pages * TSGLI Procedural Guide, version 2.33, 29 December 2015 (182 pages) * Power of Attorney, 31 July 2018 * letter, Medical Opinion from, 22 February 2019 * SGLV 8600 (Application for TSGLI Benefits), 25 February 2019 * letter, U.S. Army Human Resources Command (HRC), 28 March 2019 * letter, HRC, 14 May 2019 * letter, Medical Opinion from, Independent Nurse Reviewer, 2 June 2019 * letter, Counsel, (Appeal to HRC), 4 June 2019 * letter, HRC (Denial of Appeal), 5 January 2020 * 4 previous decisions of TSGLI appeals for relief to U.S. District Courts (81 pages) * U.S. District Court, Western District of Kentucky, Civil Action Number 3:15CV- vs. U.S. * U.S. District Court, Western District of Kentucky, Civil Action Number 3:15CV- ., vs. U.S. * U.S. District Court, Western District of Kentucky, Civil Action Number 3:15-, CK vs. U.S. * memorandum for record, CW3 , 4th Battalion, 9th infantry Regiment (Manchu), 27 June 2019 (Witness Account of Applicant) * letter, Medical Opinion from, 8 June 2020 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 through counsel by means of letter to U.S. Army HRC, 25 February 2019: a. He disagrees with the U.S. Army's denial of his TSGLI benefits under the TSGLI schedule of losses. His traumatic injury resulted in an inability to perform at least two activities of daily living; permanent loss of penis and total and permanent loss of urinary system function. b. His position that the ADL losses and genitourinary losses have been established: * He was injured during a fall from a tanker truck onto concrete floor on 11 June 2003 while participating in a training exercise in South Korea * He sought treatment for back and neck pain with concomitant urinary frequency and erectile dysfunction * The losses are directly related to the traumatic event at issue * There are no other cause plausible for the losses claimed * The presence of the traumatic event not being in initial records does not mean it did not happen * The reference to the VA records is misrepresented * A correction to the applicant's military record is proper in order to allow $100,000.00 in TSGLI benefits c. He was injured on 11 June 2003 during a military training exercise in South Korea when he fell 15 feet off a fuel tanker onto concrete. He was evaluated 2 months later for urinary frequency. His symptoms gradually worsened to include severe low back pain, loss of bowel/bladder control, erectile dysfunction, and bilateral weakness. He was medically evacuated to Walter Reed Army Medical Center (WRARMC). On 20 October 2004, he underwent lumbar spine fusion surgery with no improvement of his symptoms. On 13 December 2004, he began physical therapy with limitations due to severe pain and right foot drop. In 2006 a Physical Evaluation Board (PEB) determined him unfit for duty. In May 2007, the Veterans Administration determined his injury was service connected and eligible for a disability rating. Over the next few years his conditions deteriorated. He was by then confined to a wheelchair and continues to suffer from Neurogenic Bladder with bowel incontinence, and erectile dysfunction. d. From the date of his lumber spine surgery in October 2006 through at least 20 January 2005, he has required active duty living (ADL) assistance from his wife with bathing, dressing, maintaining continence, and transferring due to symptoms of debilitating pain. e. Counsel further provides a summary list of medical records received from the VA. The file was provided by CD, it was digitally attached as an exhibit for Board consideration, and it includes a chronological listing of medical documents he received consisting of approximately 2250 pages, a description of each document, and the page location in the digital file submitted with his application. f. Counsel subsequently provided additional evidence which includes counsel statement; 42 pages of service medical records; a statement; a 13 page statement from; a VA rating decision, and a CRSC application. 3. The applicant states in a 5-page self-authored statement, 22 February 2019: a. He fell off a fuel tanker and suffered a spinal cord injury when he was attached to 121st General Hospital and stationed at Camp Humphrey during a daytime field training exercise approximate to Foal Eagle. He saw the field medic in his unit who gave him Ibuprofen for his lower back pain. b. A few months later he went for evaluation because he had frequent urination and fatigue and it was worsening. They sent him to Walter Reed Army Medical Center (WRAMC) in August 2004. He had work up done until he had back surgery in October 2004. He was released back to his family in a special homecare outpatient program. He could not lift for about 4 months. c. He was issued a wheelchair because he had problems with ambulation and he was in the homecare program until he was out of the service. He used his wheelchair in his home and his wife would help him get in and out of his wheelchair. He could not use a walker or a cane. He was falling down because of drop foot and still having back pain with urinary incontinence. d. His wife was the primary caregiver and still is. He needed help with bathing and going to the bathroom to get on and off the toilet. He needs help getting in and out of the wheelchair and to and from the bed or sofa. He was in a wheelchair for 4 or 5 months. e. He had nerve issues in his upper extremities and wasn't able to shave for 6 to 7 months. He cut his skin so his wife helped him. The doctors told him his nerve was pinched. He was out of work for 2 1/2 to 3 years and put on the temporary disability retired list (TDRL) in 2006. He was treated a WRAMC for 3 years. f. He found employment through the Wounded Warrior Program in 2008 and was still using a wheelchair for long distances. He also used a walker because of right foot drop. In 2016 he tried to commit suicide and because of this, he was subsequently transferred to continuing medical care at the VA. 4. A review of the applicant's service records shows: a. He enlisted in the Regular Army on 22 June 1999. b. Counsel provided 42 pages of additional evidence of service medical records to be added to his application. These service medical records outline the treatment he received at 121st General Hospital, Walter Reed Army Medical Center (WRAMC), and a portion of his initial VA treatment, prior to his permanent disability retirement. They include: * SF 600, Medical Records, 1 August 2003, 8 August 2003, 15 August 2003, 20 August 2003, 3 December 2003, 9 February 2004, 17 March 2004, 22 March 2004, 29 March 2004, 3 May 2004, 7 May 2004, 11 June 2004, 27 July 2004, and 13 December 2004 * 121st General Hospital Notes, 24 March 2004, 29 March 2004, 13 May 2004, 1 June 2004, 28 June 2004, 9 July 2004 * DD Form 689, Sick Slips, 11 June 2004, 12 July 2004, sand 19 July 2004 * Walter Reed Army Medical Center Medical Notes, 1 June 2004, 9 July 2004, 3 November 2004, 9 November 2004 * DA Form 3349, Physical Profile, 1 June 2004 and 9 September 2004 * WRAMC Post Operation Medical Notes, 20 October 2004 * WRAMC MEB Summary, 23 September 2005 * VA Medical Notes, Urology Exam, 25 April 2005 * VA Medical Notes, 21 November 2006 * VA Rating Decision, 11 May 2007, detailing and granting him service connected disability for: * Cauda Equina syndrome, severe * neurogenic bladder for frequency and incontinence * major depressive disorder * degenerative changes, lumbar spine * scar, lumbar spine * degenerative disc disease, cervical spine * organic impotence, erectile dysfunction * loss of use of creative organ * VA Health Record, 19 March 2008 c. On 27 June 2006, a Medical Evaluation Board (MEB) convened and found some of his medical conditions failed medical retention standards. (1) After consideration of the clinical records and physical examination, the MEB found that the patient had the following medical conditions with an approximate date of origin of 2003: * right T11, left L2 ASIA D spinal cord injury * Cauda Equina syndrome * chronic neck and low back pain * neurogenic bladder * erectile dysfunction * major depressive disorder, single episode, moderate (2) The MEB recommended he be referred to a physical evaluation board (PEB). He did not desire to continue on active duty. (3) On 27 June 2006, he agreed with the Board's findings and recommendation. d. On 14 August 2006, an informal PEB convened and determined he was physically unfit because of: * neurogenic bladder with a diagnosis of incomplete spinal cord injury, 40% * chronic back pain with an initial history of pain starting after long trips in a 5- ton vehicle, 10% * chronic neck pain without any specific history of trauma or injury, range of motion limited by pain, 0% (no %) e. The informal PEB recommended a combined rating of 50% and that his disposition be placed on temporary disability retirement list (TDRL) with a reexamination during March 2008. f. On 29 August 2006, the applicant, having been advised of the findings and recommendations of the PEB and received a full explanation of the results of the findings and recommendations and legal rights pertaining thereto, concurred with the PEB proceedings and waived a formal hearing of his case. g. On 15 November 2006, he was honorably retired under the provisions of Army Regulation 635-40 (Physical Evaluation for Retention, Retirement, or Separation), and placed on the TDRL. His DD Form 214 shows the narrative reason for separation as disability, temporary. It also shows he completed 7 years, 4 months, and 24 days of active service. h. On 8 September 2008, a TDRL PEB convened. The TDRL PEB determined he remained physically unfit because of: * urge incontinence of urine requiring condom catheter and 5-6 absorbent undergarments daily; 60% * chronic low back pain post L4-S1 fusion with forward flexion of 30 degrees and combined range of motion of 110 degrees; 40% * chronic neck pain with forward flexion of 45 degrees and combined range of motion of 230 degrees; 10% i. The TDRL PEB recommended a combined rating of 80% and that his disposition be permanent disability retirement. j. On 13 September 2008, the applicant, having been advised of the findings and recommendations of the PEB and received a full explanation of the results of the findings and recommendations and legal rights pertaining thereto, concurred with the PEB proceedings and waived a formal hearing of his case. k. U.S. Army Physical Disability Agency issued orders D263-05, 19 September 2008, removing him from the TDRL and permanently retired him with an 80% of disability. l. Counsel attached copies of VA medical records provided to him in response to a privacy act request for the applicant, 4 August 2018. The VA records include the applicant's service medical records, and medical records from a third-party foot treatment center. The medical records were provided by CD and consist of: * Ambulatory Care Clinic, , 1 August 2003, for complaint of (c/o) frequent urination and erectile dysfunction * Ambulatory Care Clinic, , 15 August 2003, for c/o urination pain and back and neck pain * Ambulatory Care Clinic, , 9 February 2004, for c/o loss of bowel and bladder control * Ambulatory Care Clinic, , 17 March 2004, for c/o low back pain * Ambulatory Care Clinic, , 22 March 2004, for c/o low back pain, and a referral to neurosurgery * MRI of the Lumbar Spine, 24 March 2004, with stated findings * 121st General Hospital, 2 April 2004, , consultation * Ambulatory Care Clinic, , 26 May 2004, for c/o of lumbar spine pain * Neurosurgery Clinic, Summary, , 1 June 2004 * memorandum, 121st General Hospital, 22 July 2004 (Return of Applicant to CONUS) * WRAMC Operative Report, , 20 October 2004 * WRAMC Social Work Notes, 21 October 2004 * WRAMC Initial Evaluation, , 21 October 2004 * WRAMC Discharge Summary, , 26 October 2004 * WRAMC Orthopedic Clinic notes, 3 November 2004 * WRAMC Physical Therapy Notes, 9 December 2004 * WRAMC Initial Evaluation of Physical Therapy, 13 December 2004 * WRAMC Physical Therapy Notes, 12 January 2005 and 21 January 2005 * WRAMC Orthopedic Spine Clinic Notes, , 27 January 2005 * WRAMC memorandum, 4 February 2005 (Request for Subsistence-Home) * WRAMC Physical Therapy Note, 18 February 2005 * WRAMC Orthopedic Spine Clinic Notes, , 7 April 2005 * WRAMC Urology Clinic Notes, , 25 April 2005 * WRAMC Physical Therapy Note, 7 June 2005 * WRAMC Urology Clinic Notes, , 14 July 2005 * Medical Evaluation Board Summary, 23 September 2005 * WRAMC PMR, , 23 September 2005 * WRAMC Urology Clinic Notes, , 27 February 2006 * WRAMC Urology Clinic Notes, , 14 April 2006 * WRAMC PMR NCS, 23 May 2006 * letter, Medical Board Office, , 22 June 2006 * WRAMC (Bethesda), Internal Medicine PCC Notes, 12 July 2006 and 29 August 2006 * Application for Annual Clothing Allowance, 25 September 2006 * WRAMC GI Clinic, , 20 November 2006 * VA Compensation and Pension (C&P) Exam, 21 November 2006 * VA C&P Exam Report, 16 January 2007 * (x) Foot and Ankle Center, P.A., 25 September 2007 * SF 600 (VA Chronology of Medical Care), 19 March 2008 * VA Rating Decision, 11 May 2007, with progress and treatment notes, granting him service connected disability for severe Cauda Equina syndrome, neurogenic bladder, major depressive disorder, degenerative change to his lumbar spine, degenerative disk disease, and organic impotence * WRAMC Urology Surgery Notes, , 21 February 2008 * VA Rating Decision, 16 December 2008, with progress and treatment notes, denying service connection for irritable bowel syndrome, hemorrhoids, Morton's neuroma of left foot, and right foot condition * VA Radiology Report, Left Foot Exam, 10 March 2009 * VA C&P Exam, , 19 April 2010 * VA C&P Exam, , 19 April 2010 * VA Rating Decision, 5 May 2010, with progress and treatment notes, granting service connected disability benefits for stress related headaches, severe Cauda Equina syndrome, neurogenic bladder, major depressive disorder, degenerative changes to lumbar spine, and degenerative disk disease * VA Form 21-526EZ (Application for Disability Compensation), date illegible * VA Report of Hospitalization 10 November 2014, discharge 13 November 2014 * VAMC Richmond, Group Practice Consultation, , 3 December 2014 * VA Psychotherapy Note, , 3 December 2014 * VA Form 21-0966 (Application to File Claim for Compensation and/or Pension or Survivors Pension DIC), 22 April 2015 * VA Form 21-22 (Appointment of Veterans Service Organization (VSO) as Representative), 22 April 2015 * VA Form 2680 (Examination for Housebound Status), 22 April 2015 * VA Form 21-4142 (Authorization to Disclose Information to VA), 14 May 2015 and 19 May 2015 * VA Rating Decision, 17 July 2015, with progress and treatment notes * VA Form 21-4142a (General Release for Medical Provider Information to the VA) (Release of WRAMC medical information to the VA), not dated * VA Form 21-4138, 24 July 2015 (Request for BVA Appearance Hearing) * letter, Applicant (to the VA), 29 July 2015, granting service connection for Cauda Equina syndrome and proposing a finding of incompetency, with 55 pages of progress notes and radiology reports * letter of support, (to the VA), 30 July 2015 * letters, Third Party VSO, with administrative and medical documents attachments; 29 April 2015, 23 June 2015, 29 May 2015, 2 July 2015, 24 July 2015, 19 August 2015, 21 August 2015, 14 September 2015 * VA Form 21-2680 10 September 2015 * VA C&P Exam Notes, , 4 November 2015 * VA Rating Decisions, 13 November 2015 and 22 December 2015, with 333 pages of VA medical treatment and progress notes * VA Correspondence, 28 December 2015, decision for VA benefit entitlement * VA Correspondence, 7 March 2016 * VA Form 21-4502 (Application for Conveyance Adaptive Equipment), 14 March 2017 * VA Rating Decision, 23 August 2016, establishing entitlement to conveyance and adaptive equipment, with 229 pages of VA medical treatment notes * VA Report of Hospitalization, 12 February 2017, discharge 13 February 2017 * VA Financial Record of Payment for Adaptive Equipment, 9 March 2017 * VA Print screen of service-connected disabilities, 14 March 2017 * Request Pertaining to Military Records and VA release form, 31 July 2017 * VA Report of Hospitalization, 14 May 2018, discharge 16 May 2018 * VA Report of Hospitalization, 20 June 2018, discharge 22 June 2018 m. His counsel provided a copy of: (1) A medical opinion from, 22 February 2019, outlining the applicant's treatment as it relates to his TSGLI claim, after having reviewed the medical records provided to her. She confirms he suffered an incomplete spinal cord injury resulting in Cauda Equina syndrome with neurogenic bladder following a fall from a tanker truck during military training exercises. She acknowledges there was no incident report or line of duty report as the applicant did not believe he was severely injured after the fall, though he did seek medical treatment immediately after falling from the truck. She discusses his injury and how his current medical conditions have progressed to the present and how his injuries relate to his current medical conditions. (2) A self-authored 5-page statement from the applicant's wife, 27 February 2019, outlining her daily ADL tasks n. On 25 February 2019, counsel, having been retained by the applicant, provided U.S. Army HRC with a letter, an application for TSGL, a statement from 22 February 2019, and associated evidentiary documents. In this letter, counsel states: (1) That the TSGLI Office to consider the totality of all evidence and that the government, being the insurance policy holder of the SGLI, creates a greater responsibility of the TSGLI Office to be self-policing, and therefore must exercise careful due consideration to avoid a wrongful denial. (2) On 11 June 2003, the applicant fell off a truck during a training exercise and was evaluated by a medic in his unit and prescribed Ibuprofen for low back pain. Two months later he was evaluated for urinary frequency. His symptoms worsened to include lower back pain, loss of bowel and bladder control, erectile dysfunction, and bilateral leg weakness. An MRI lumbar spine showed gross abnormalities of HNP L4 through S1. He was medically evacuated to WRAMC and diagnosed with Cauda Equina syndrome with erectile dysfunction. On 20 October 2004 lumbar spine fusion resulted in no improvement. He underwent physical therapy starting on 13 December 2004. He was determined unfit for duty in June 2006 after a PEB. The VA determined his injury was service-connected. Over the next few years his condition deteriorated and he was confined to a wheelchair, requiring full-time assistance from his wife. He continues to suffer from neurogenic bladder with bowel and bladder incontinence, and erectile dysfunction. (3) Since the date of his lumber spine surgery through 20 January 2005, he required ADL assistance with bathing, dressing, maintaining continence, and transferring due to pain with movement and bilateral leg weakness, spinal precautions, and wheelchair confinement. He requires: * assistance from another person to move into or out of a bad or chair, put on clothing, socks or shoes * assistance from another person to bathe more than one part of the body or get in or out of the tub or shower (4) He is entitled to $100,000.00 under the TSGLI schedule of losses: * number 20 for traumatic injury resulting in inability to perform at least two activities of ADL at 90th consecutive day of ADL loss * number 19 for permanent loss of use of the penis and total and permanent loss of the urinary system function o. His records contain an SGLV 8600 (Servicemembers' Group Life Insurance Form) (TSGLI Program Application), 25 February 2019, in which he describes his injuries. p. On 28 March 2019, U.S. Army HRC denied his claim for traumatic injury protection benefits under Servicemembers' Group Life Insurance for ADL other than TBI up to 90 days, loss of urinary system function, and loss of use of penis. It advised him of his appeal rights, that he must appeal its decision within 1 year, provided him a SGLV- 8600A (TSGLI Appeal Request Form), and further advised him, in part: (1) "Your claim for the inability to perform activities of daily living (ADLs) due to traumatic injury (other than traumatic brain injury) was not approved because the medical documentation submitted with your claim did not contain enough information to support that you could not perform ADLs independently. The documentation does not adequately cover the time period at the 30, 60, or 90 day milestones. (2) "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 your inability to independently perform at least two of the six ADLs (Eating, Bathing, Dressing, Toileting, Transferring, and Continence). To approve your claim, we need documentation addressing the specific injury/injuries you sustained as a result of the traumatic event and providing a timeline of treatment up to the first 30 days of recovery. (3) "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. (4) "Your claims for loss of use of the penis and urinary system function were not approved because these losses were not a direct result of a traumatic injury caused by a traumatic event. The supporting documentation submitted with your claim includes a Department of Veterans Affairs rating decision indicating that these losses were incurred during the Gulf War rather than by a traumatic event in South Korea. (5) "Under the laws and regulations governing the TSGLI Program, 38 U.S.C. 1980A(b)(1) and 38 CFR 9.20(c), a traumatic injury is defined as "physical damage to a living body" caused by a traumatic event. 38 CFR 9.20(b) defines a traumatic event as "the application of external force, violence, chemical, biological, or radiological weapons, or accidental ingestion of a contaminated substance causing damage to a living being occurring on or after October 7, 2001." (6) "TSGLI regulations also state "The event must involve a physical impact upon an individual" and "It would not include an injury that is induced by the stress or strain of the normal work effort that is employed by an individual, such as straining ones back from lifting a ladder." q. On 16 April 2019, counsel responded by letter to the U.S. Army HRC denial letter (letter, 28 March 2019) of his claim for TSGLI benefits. He stated he and his client disagreed with the HRC denial of benefits for 90 days of ADL losses. He requested: (1) That HRC review the entire file de novo and evaluate all medical, legal, and lay evidence previously submitted. He provided a disk of complete files of his case, and requested consideration of four previous binding district court decisions regarding the TSGLI administrative process. (2) That His applicant receive a recovery of $100,000.00 under the Traumatic Servicemembers' Life Insurance Schedule of losses Number 20 (Traumatic injury resulting in inability to perform at least two ADLs at 90th consecutive day of ADL loss) and Number 19 (Permanent loss of use of the penis and total and permanent loss of urinary system function). r. His record contains a copy of a Combat-Related Special Compensation (CRSC) application (DD Form 2860), 2 May 2019, and a VA disability rating list of service- connected diagnosis, with an effective date 16 November 2006: * chondromalacia, left knee, 10% * major depressive disorder, 50% * Cauda Equina syndrome, severe, 60% * degenerative changes, lumbar spine, 40% * degenerative disc disease, cervical spine, 30% * organic impotence, 0% (no percentage) * scar, lumbar spine, 10% * bowel incontinence due to Cauda Equina syndrome, 30% s. Counsel provided a copy of a letter from, 2 June 2019, in which she stated she reviewed the medical records provided to her for the applicant as they related to his TSGLI claim. She outlined his medical records as they applied to his injuries, opining that his losses were supported, the incontinent issues were ongoing, and directly related to his traumatic event in June 2003. She further stated his erectile dysfunction issues were also directly related to the traumatic event as there was ample documentation to support the connection. t. On 4 June 2019, counsel appealed the HRC decision (28 March 2019), and provided new and material documentary evidence (letter from 2 June 2019), a copy of the complete file, and requested a de novo review. Counsel stated, in part: (1) He and his client remained in disagreement with the new decision on the grounds that his ADL losses and genitourinary loses had been established, the losses were directly related to the traumatic event issue, and the reference to the VA records was misrepresented. The records solely find that the applicant was a Gulf War Era Veteran which had no relevance to his case. (2) He provided new and material evidence of a statement of, which outlined the applicant's medical records and the applicant's injuries, in disagreement with the HRC decision of 14 May 2019. u. On 5 January 2020 HRC denied his appeal for TSGLI. HRC advised him of his rights to appeal the decision to ARBA or to Federal district court. It discussed the reasons for its denial of his appeal, stating, in part: (1) "For determining if a member has a loss of TSGLI program specific ADLs, Title 38 of the Code of Federal Regulation (CFR), 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." (2) "Concerning Other Traumatic Injury (OTI) related ADL loss, the medical record does not support basic ADL loss at the 30 day milestone or beyond. First and foremost, this claim is not eligible for TSGLI payment because there is no qualifying traumatic event by TSGLI standards. (3) "The medical record shows [Applicant's] back and neck pain began in 2002 as was documented in the August 1, 2003 Ambulatory Care Clinic Note, the March 22, 2004 Ambulatory Care Clinic Note, the October 20, 2004 History and Physical Examination, the October 21, 2004 Physical Therapy Initial Evaluation, and the March 30, 2005 Physical Therapy Note. There was no initial injury or trauma as noted in the December 3, 2003 Ambulatory Care Clinic Note and the January 27, 2006 Medical Evaluation Board (MEB) Summary, and the back pain gradually worsened according to the October 20, 2004 History and Physical Examination and the October 21, 2004 Physical Therapy Initial Evaluation. (4) "The flares of his back pain (working and lifting in the motor pool on February 9, 2004 and March 22, 2004, riding for long trips in a 5 ton vehicle on March 17, 2004, and physical training [i.e. sit-ups] on April 12, 2004) would not be considered a qualifying traumatic event per TSGLI standards. (5) "Although the claimed traumatic event was mentioned in the medical record, it was not until the November 21, 2006 Genitourinary Examination almost three and a half years later. In fact, there is no medical document on the claimed June 11, 2003 traumatic event date or within a month afterwards. One would assume that a traumatic event of such significance to cause basic ADL loss would warrant a medical evaluation and proper documentation on the date it occurred or soon after. (6) "Another alternate start date for his back pain of July 25, 2003 was listed in the August 9, 2005 Statement of Medical Examination and Duty Status form and the January 27, 2006 MEB Summary, but no injury or trauma was recorded in these notes. (7) "Thus, the claimed June 11, 2003 traumatic event was not the start of his back pain nor was it significant enough to warrant a medical evaluation on the date or immediately afterwards unlike his other documented back pain flares. Therefore, the claimed June 11, 2003 traumatic event is not a qualifying traumatic event for TSGLI purposes, because it was unlikely to have had a significant impact on his back pain. (8) "Second, the medical record does not support that [Applicant’s] claim met the TSGLI standards for basic ADL loss of two or more ADLs for 30 consecutive days or greater. [Applicant] claimed his ADL loss began after his October 20, 2004 spinal fusion surgery. Although the October 21, 2004 Physical Therapy and Occupational Therapy Initial Evaluations documented he required maximum assistance for transfers, bathing, dressing, and ambulation, the October 26, 2004 Narrative Summary and Discharge Instructions noted he ambulated independently with improved symptoms, adequate pain control, and normal bowel and bladder function. Ambulating independently with adequate pain control and being discharged to home instead of an acute rehab center indicates a level of physical ability that should allow for modified independent performance of basic ADLs per TSGLI guidelines. (9) "The medical record showed that he had the anticipated healing and improvement up until November 18, 2004 (Day 30 after the claimed start of ADL loss), thus he should have been able to perform his basic ADLs in a modified independent manner for most of the first 30 days of the claimed ADL loss period. (10) "He reported that on November 18, 2004, he heard a click and his pain worsened, however this was reported during his December 9, 2004 (Day 51 after claimed start of ADL loss) Orthopedic Spine visit. One would assume that a patient, who experienced worsening pain that adversely affected his basic ADLs, would attempt to see his back specialist sooner rather than wait the three weeks until his regularly scheduled follow-up appointment. Yet, [Applicant] waited the three weeks for his follow- up appointment indicating that this worsening pain was unlikely to have significantly affected his basic ADL performance. (11) "He began outpatient physical therapy on December 13, 2004 (Day 55 after the claimed start of ADL loss), which documented he had no bowel or bladder dysfunction and an antalgic gait with use of a cane. The ability to walk with a cane showed a physical level of strength and balance that should allow for modified independent basic ADL performance. (12) "The physical therapy visits from December 21, 2004 (Day 63 after the claimed start of ADL loss) to January 5, 2005 (Day 78) documented reported pain levels of 4-6 out of 10 before therapy and 5-7 out of 10 after therapy. The January 21, 2005 (1 day after the claimed end of the ADL loss period) Physical Therapy Note documented he was able to don his shoes with only being able to move his back 25% in flexion, rotation, and side-bending. It also notes he had 4-7 out of 10 pain and a very antalgic gait with use of a cane. The ability to don his shoes should translate to a physical ability to transfer, bathe, and dress in at least a modified independent manner. This note indicates the ability to independently perform basic ADLs was possible despite moderate to moderate-severe pain, a very antalgic gait, and significantly limited back movement. (13) "Thus, the reported moderate pain levels, antalgic gait, and limited back movement in the previous physical therapy visits should also allow for modified independent basic ADL performance. Therefore, [Applicant’s] OTI-related ADL loss claim does not qualify for TSGLI payment at the milestone of 30 consecutive days or beyond. (14) "Title 38 of the CFR, section 9.20 states 'the term permanent loss of use of the penis is defined as damage to the glans penis or shaft of the penis that results in complete loss of the ability to perform sexual intercourse that is reasonably certain to continue throughout the lifetime of the member.' (15) "Concerning permanent loss of use of the penis, the medical record does not support this claim. First, this claim did not involve a qualifying traumatic event as discussed above, thus it is not eligible for TSGLI payment. (16) "Second, the medical record does not document any damage to the glans penis (head of the penis) or the shaft of the penis that would result in complete loss of the ability to perform sexual intercourse. A normal penis without lesions is recorded in the April 25, 2005 Urology Clinic Note and the November 21, 2006 Genitourinary Examination. In addition, the August 1, 2003 and the August 20, 2003 Ambulatory Care Clinic Notes indicated the provider felt [Applicant’s] erectile dysfunction had a cause with a large psychosocial component due to stress. Therefore, his claim of permanent loss of use of the penis does not qualify for TSGLI payment. (17) "[Applicant’s] statement was reviewed and considered for this adjudication. First, this statement was written over 15 years after the claimed traumatic event. Second, the first two pages are primarily devoted to establishing the claimed traumatic event. This claimed traumatic event is not questioned whether it occurred. However, as discussed above, it was not the start of his back pain nor was it a significant cause of his pain worsening. This statement supports its lack of significance. He stated he fell off of the fuel tanker, then was seen by the medic and given ibuprofen. Afterwards, he was not seen until a couple of months later for symptoms other than back pain. An event that does not require higher medical evaluation, more significant medicine than ibuprofen, nor a follow-up appointment is not a significant event. (18) "Third, there are discrepancies between the statement and the medical record. He stated he was using a wheelchair and could not use a walker or a cane. However, the medical record documented he was ambulating independently in the October 26, 2004 discharge Instructions and was using a cane during the December 13, 2004, January 5, 2005, and January 21, 2005 physical therapy notes. He also stated he had urinary incontinence. Yet, the October 26, 2004 Discharge Instructions, the December 9, 2004 Orthopedic Spine Note, the December 13, 2004 Physical Therapy Note, and the January 27, 2005 Orthopedic Spine Note documented he had improved bladder function or no bowel or bladder problems. In addition, he stated he had foot drop, but he did not have the diagnosis of foot drop in the medical records during the claimed ADL loss period. (19) "Lastly, the last two to three pages of his statement discuss a timeframe that was past the two year (730 day) mark after the claimed traumatic event and would not be eligible for TSGLI payment. Thus, this statement is not definitive proof that he qualified for TSGLI payment." v. On 8 June 2020, counsel submitted a supplemental 14 page statement from TB, RN, BSN, in response to the HRC letter, 5 January 2020. Her statement, 1 June 2020, provides an opinion, outlining the service medical records and VA medical records of the applicant's treatment, countering the HRC letter of denial of his appeal for TSGLI benefits. 5. Public Law 109-13 implemented the Army TSGLI Program. A Servicemember must meet all of the requirements to be eligible for payment of TSGLI. a. Section 9.20 (e) (6) (vi) defines the term inability to carry out activities of daily living means the inability to independently perform at least two of the six functions: bathing, continence, dressing, eating, toileting, transferring in or out of a bed or chair with or without equipment. b. Section 9.20 (e) (6) (xxii) defines the term permanent loss of use of the penis as defined as damage to the glans penis or shaft of the penis that results in complete loss of the ability to perform sexual intercourse that is reasonably certain to continue throughout the lifetime of the member. c. Section 9.20 (e) (6) (xxix) defines the term permanent loss of urinary system function as damage to the urethra, ureter(s), both kidney, bladder, or urethral sphincter muscles(s) that requires urinary diversion and/or hemodialysis, either of which is reasonably certain to continue throughout the lifetime of the member. d. The TSGLI Procedural Guide lists two types of TSGLI scheduled losses, categorized as Part I and Part II. (1) Part I (General Provisions) states for losses listed in Part 1, multiple injuries resulting from a single traumatic event may be combined with each other and treated as one loss for purposes of a single payment. The total payment may not exceed $100,000. There are nine categories of losses covered: sensory losses, burns, paralysis, amputation, limb salvage, facial reconstruction, Activities of Daily Living (ADLs), inpatient hospitalization and genitourinary losses. (2) Part II loss payments may not be combined with payment amounts in Part 1, only the higher amount will be paid. The total amount paid may not exceed $100,000. Traumatic injuries resulting in the inability to perform at least two ADLs 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 ADLs, 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 ADLs 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. By statute, the VA is permitted to award compensation for disabilities which were incurred in or aggravated by active military service. However, an award of a VA rating does not establish an error or injustice on the part of the Army. The Army rates only conditions determined to be physically unfitting at the time of discharge, which disqualify the Soldier from further military service. The Army disability rating is to compensate the individual for the loss of a military career. The VA does not have authority or responsibility for determining physical fitness for military service. The VA may compensate the individual for loss of civilian employability. 7. MEDICAL REVIEW: a. The claimant through counsel, requests compensation through the TSGLI program for loss of at least 2 ADLs (activities of daily living) for 90 consecutive days or more due to the other than traumatic brain injury event on 11Jun2003. He also claimed permanent loss of use of penis; and permanent loss of urinary system function. 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 22Feb2019 statement; the claimant’s wife’s 27Feb2019 statement; the claimant’s friend’s 04Mar2019 statement; the independent nurse reviewer’s statements (22Feb2019, 02Jun2019, and 01Jun2020); the claimant’s counselor’s brief; and the TSGLI Procedural Guide. The records were carefully reviewed. b. The claimant reported that he fell off a fuel tanker and sustained a spinal cord injury on 11Jun2003. He was seen on 01Aug2003, and he was evaluated at the Ambulatory Care Clinic in S. Korea for urinary frequency and erectile dysfunction. His condition worsened, and he was eventually admitted to the hospital on 20Oct2004 for back surgery for Cauda Equina Syndrome. The claimant was discharged on 26Oct2004. He had physical therapy while in patient and began outpatient physical therapy 13Dec2004. c. Due to the reported traumatic event, the claimant contends he suffered permanent loss of use of penis on 01Aug2003. He recalled last erection was in August 2003. A claimant meets the TSGLI standard for permanent Loss of Use of the Penis if he suffers damage to the glans penis OR damage to the shaft of the penis that results in complete loss of the ability to perform sexual intercourse that is reasonably certain to continue throughout the lifetime of the member. (1) Medical Records concerning the claim a) 01Aug2003 Testosterone level was normal: 2.88 (normal 2.41-8.27 ng/mL) b) 25Apr2005 Testosterone level was low: 193 (normal 280-800 ng/dL) c) 25Apr2005 Urology Clinic. Exam showed a normal uncircumcised phallus. Both testes were descended, normal size, shape, and consistency. No scars, deformity, or signs of previous trauma were documented. d) To treat his erectile dysfunction, the record showed that the claimant has tried various treatments much with little success to include but not limited to Alprostadil injection and suppository, and Viagra. He currently fills a Viagra prescription. (2) TSGLI standard: a) When a member suffers permanent loss of use of the penis, the member is eligible for a TSGLI benefit if the member meets the following standard: Damage to the glans penis that results in complete loss of the ability to perform sexual intercourse; or damage to the shaft of the penis that results in complete loss of the ability to perform sexual intercourse. b) The independent nurse’s statement offered that “Permanent injury to the spinal cord can disrupt the associated nerves that innervate the penile shaft responsible for stimulation of smooth muscle and blood vessels to maintain erection”. However, there was no objective medical documentation confirming traumatic damage to nerves or blood vessels in the penile shaft. Recommend: Medical evidence does not support that the claimant’s loss met the requirements for a loss under TSGLI. d. Due to the reported traumatic event, the claimant contends that he was unable to maintain continence independently because he was unable to control bowel/bladder function since 09Feb2004. He requires PA and SBA. He also endorsed that he suffered permanent loss of urinary system function on 20Oct2004. (1) Medical Records concerning the claim a) 25Apr2005 Urology Clinic note. Since his back fusion, he had some improvement in his bowel and bladder control, but still has occasional urine leakage. The examiner wrote that the claimant’s urine leakage does not warrant use of pads, and was usually several drops of urine. He managed by changing underwear 2-3 times per day, and this happened most days. He usually awakened to void 2 times per night to void - this was improved since prior to surgery when he would get up 10 times a night. b) 28Apr2005 Urodynamic testing. Assessment: 1) Small bladder without instability with severe urgency observed. 2) Erectile Dysfunction with decreased total testosterone. Plan: Trial of oral anticholinergics. c) 02Sep2005. The results of urodynamic testing completed on 28Apr2005 was the claimant had a small bladder capacity with normal sensation and innervation. He was diagnosed with severe urgency. d) 14Ap2006 WRAMC Urology completed a workup and analysis of the applicant’s urinary condition in preparation for the MEB. A neurogenic bladder was confirmed; but it was also concluded that the Cauda Equina Syndrome condition could not completely explain the mixed findings of the urodynamic studies. (2) TSGLI standard: a) evaluating a claim for total and permanent loss of urinary system function, the member is eligible for a TSGLI benefit if the member meets the following standard: Damage to the urethra, ureter(s), both kidneys, bladder or urethral sphincter muscle(s); that requires urinary diversion, hemodialysis, or both. b) There was no objective medical documentation confirming traumatic damage to the urethra, ureter(s), both kidneys, bladder or urethral sphincter muscle(s). In addition, the condition had not required urinary diversion or hemodialysis. Recommend: Medical evidence does not support that the claimant’s loss met the requirements for a loss under TSGLI. e. The claimant contends that due to his traumatic injury, any type of movement caused debilitating pain. He had weakness in both legs and was high risk for falls which confined him to a wheelchair for the first 3-4 months postoperatively. He contends that he was unable to perform the following ADLs for greater than 90 days (from 20Oct2004 to 20Jan2005) due to high levels of pain and spine precautions: (1) Unable to bathe independently because he required assistance to get in/out of shower/tub; bathe lower body/backside. He required physical assistance (PA) and standby assistance (SBA). (2) Unable to dress independently. He required assistance to don undergarments, pants, socks, and shoes. He required PA and SBA. (3) Unable to transfer independently. He required assistance when getting in/out of wheelchair; going to/from bed; going up/down stairs; getting in/out of car. He required PA and SBA. f. The claimant stated that used a wheelchair for ambulation after his back surgery because he felt unbalanced. He stated that he could walk only a few feet. He also stated that he had urinary dysfunction and he had to use pads due to urinary incontinence. The claimant’s wife provided written testimony that the applicant was had problems falling due to foot drop so he used a waist support and wheelchair. It should be noted that the foot drop diagnosis occurred after the claimed loss period. She reported becoming his primary care giver and assisted him with everything. She stated that she fed him because he could not hold the spoon or fork. He had a shower chair but she also assisted him in the shower/bath tub. She also helped him put on his t-shirt and pants. And finally, she stated that she helped him get into and out of the bathroom and also to wipe. It was unclear from her testimony the time frame that these specific services were required. His friend provided testimony that after the field exercise at the hospital, the claimant could barely walk. The 22Feb2019 and 02Jun2019 Independent Nurse Reviewer summaries of treatment and timeline were reviewed. The testimony that the reported care was provided is accepted. However, the fact that care was provided is not the TSGLI standard. The standard is that the assistance must be necessary and without with the task would not be able to be completed. g. The medical treatment records showed the following: (1) 01Aug2003 Ambulatory Care Clinic (Day 52 after reported traumatic event). He reported erectile dysfunction, urination problems, upper back pain and neck pain for 1 year. Pain was reported as 4/10. He was urinating 20-30 times per day. He also reported fatigue. (2) 08Aug2003 Ambulatory Care Clinic (Day 59 TE). He reported increased urinary frequency 20-30 times/day and fatigue possibly due to stress (difficult job), new baby etc. (3) 08Aug2003 121st General Hospital. He reported that he is not able to hold anything in his bladder. (4) 15Aug2003 Ambulatory Care Clinic (Day 66 TE). He presented with urination pain and pain in his back and neck. His pain was 4/10. (5) 20Aug2003 Ambulatory Care Clinic (Day 71 TE). He was seen for urination pain and pain in his back and neck. Also reported right shoulder pain. He reported that he had been to see urology and he was told that his bladder and urine flow were normal. He also reported that Viagra helped his erectile dysfunction. Psychosocial component was suspected. (6) 03Dec2003 Ambulatory Care Clinic (Day 176 TE). He was seen in follow up for lower back pain 2-3 months. Pain 6/10. It was noted that there had been no injury or trauma. (7) 09Feb2004 Ambulatory Care Clinic (Day 244 TE). He was seen for low back pain right greater than left for 2 weeks. He reported loss of bowel/bladder control in the motor pool. In cold weather, he has had foot pain for 3 years. (8) 17Mar2004 Ambulatory Care Clinic (Day 281 TE). The claimant presented with low back pain. He had been taking long trips in 5 ton vehicles. There was radiation of pain down the right thigh. He was advised back stretches, ice/heat, and no physical training for 3 days. (9) 17Mar2004 lumbar spine film showed mild left curvature, early degenerative anterior vertebral osteophyte formation is noted at L3 and L4. Minimal degenerative disc space narrowing is present at the L5-S1 level. (10) 22Mar2004 Ambulatory Care Clinic (Day 286 TE). He reported low back pain for 2 years. Working in the motor pool is aggravating low back pain. Straight leg test was positive of the right. His diagnosis was severe low back pain. (11) 24Mar2004 (Day 288 TE). Lumbar MRI Lumbar spine showed straightening of the curvature; degenerative spondylosis; disc degeneration at L2-3, L3-4 and L5-S1; minimal disc bulge at L2-3, L3-4; minimal central protrusion at L4-5; diffuse disc bulge with central annular tear at L5-S1; and slightly narrowed neural foramen at left L5-S1. 12Apr2004 121st General Hospital Neurosurgery Consult (Day 307 TE). The consult was for severe low back pain for a week., with a past history of low back pain for 2 years. 2 weeks ago during physical training (“he heard a cracking sound”). (12) 03May2004 Ambulatory Care Clinic Family Practice (Day 328 TE). Claimant had lumbar herniated nucleus pulposus and degenerative joint disease. He had just received a steroid injection the previous Thursday. He denied numbness and tingling. Bilateral lower extremity strength was 5/5. (13) 07May2004 Ambulatory Care Clinic (Day 332 TE). He reported a 10 month history of (upper) back pain. He was reporting an exacerbation of upper back pain. He also had a fever for a week. There was tenderness over his mid thoracic area. He complained of exacerbation of his upper back pain. Diagnosis: Upper Back Strain. (14) 13May2004 121st General Hospital Family Practice (Day 338 TE). He was seen for follow up for upper back pain. He indicated that he had been getting epidural injections for his lower back pain. Pain 7/10. (15) 26May2004 Ambulatory Care Clinic (Day 351 TE). He was seen for general pain and sunburn. He rated his pain as 7/10. He also presented with persistent lumbar radiculopathy signs and symptoms. There was no foot drop. (16) 26May2004 Individual Sick Slip for upper and lower back pain. He was given quarters for 48 hours. (17) 01Jun2004 121st General Hospital Neurosurgery Clinic (Day 357 TE). He was seen for chronic low back pain. There was severe loss of motion in the back due to pain. He had undergone 3 epidural injections for the low back pain without improvement. The Medical Record Report Administrative Return Summary showed that he had severe lower back pain and numbness on both legs for 4 months. His MRI showed multiple degenerative HNP L2-3, L3-4, L4-5, and L5-S1. Especially L5-S1 disc was protruded towards both foramina with stenosis. (18) 11Jun2005 Ambulatory Care Clinic (Day 367 TE). He reported back pain 8/10. He was also reporting numbness in his legs and arms. (19) 19Jul2004121st General Hospital (Day 405 TE). He walked in. He had improved pain in the upper back after an injection. (20) 27Jul2004 Ambulatory Care Clinic (Day 413 TE). He reported lower, upper, and mid back pain. He had known disc disease and degenerative joint disease and that he would have surgery in August 2004 at Walter Reed. (21) 24Aug2004 WRAMC (Day 441 TE). He presented with the history of low back pain and bilateral leg numbness, no erections with frequent loss of bowel/bladder for 2 years. Back pain for 2 years with significant worsening over the past year. The pain was 7/10 most days. (22) 09Sep2004 (Day 457 TE) temporary L3 physical profile annotated that he was unable to walk more than 10 minutes without low back pain. (23) 20Oct2004 admission to WRMC History & Physical (Day 498 TE, and Day 1 of ADL loss). He was admitted for “low back pain for 2 years with gradual worsening of the back pain and new onset of right worse than left leg pain radiating down the posterior thighs to feet. His symptoms were aggravated by performing the sit-up portion of the APFT this past spring”... “He reports erectile dysfunction for 2 years with intermittent urinary and bowel urgency. (24) 20Oct2004 WRAMC Orthopedics/Rehab Abbreviated Medical Record. The attending physician also captured the history that the claimant was seen for “low back pain for 2 years with slow progression of back pain…”. The attending added that “symptoms were aggravated by APFT sit-up in February 2004”… and that the claimant reported “no erection for 2 years”. Discharge diagnosis was DDD of L4-L5-S1 with Spinal Stenosis and the procedure performed was L4-L5-S1 TLIF (transforaminal lumbar interbody fusion). Post surgical film showed intact or stable hardware 21Oct2004). (25) 21Oct2004 Physical Therapy Initial Evaluation Note (Day 499 TE, and Day 2 of ADL loss). Spine precautions were given. His low back pain was 6/10 at rest and 7/10 with activity. His bilateral lower extremities performed within functional limits. The therapist anticipated that the claimant will likely only need a cane or no assistive upon discharge. * Bed motility: Moderate Assistance (2 staff members helped for log rolling to patient's left side and with side lying to edge of bed) * Sitting balance: Minimum Assistance (2 staff members for trunk support) * Sitting to stand: Maximum Assistance (2 staff members held onto patient) * Standing balance: Moderate Assistance (2 staff members helped) * Gait: 3 small steps during bed to high back chair transfer. (26) 21Oct2004 Occupational Therapy notes revealed: * Eating: Modified Independent * Grooming (face, hands, teeth, hair and shave): He needed supervision * Dressing lower body and back: Maximum Assistance * Dressing upper body: Moderate Assistance * Dressing lower body: Maximal Assistance * Transferring: Maximum Assistance (2 staff members) (27) 22Oct2004 Social Work comment in Integrated Documentation: “Patient is concerned in regards to ability to carry out ADLs after discharge.” (28) 26Oct2004 WRAMC (Day 7 ADLL). Discharge Summary. Postoperative diagnosis: Chronic cauda equina syndrome with severe bilateral leg pain, tight leg weakness, and degenerative disc disease. At the time of discharge, he noted improvement in symptoms, he ambulated independently, had adequate pain control and normal bowel, and bladder function. One bowel movement was documented while inpatient. Records did not indicate that he was discharged with a catheter or using absorbent pads. He started physical therapy while inpatient. He was given spine precautions per physical therapy. He was permitted to take brief showers. (29) 26Oct2004 WRAMC Nursing notes indicated that under Basic Care, he had assistance with ADLs at 0800 and 1700; and he was out of bed with physical therapy at 0700 and 1700. (30) 03Nov2004 WRAMC (Day 15 ADLL). He had numbness in the left leg. He still had pain when he sat longer than 10 minutes or standing longer than 10 minutes. The staples were removed. Steri-strips were applied. There was minimal erythema at the wound site. (31) 09Nov2004 WRAMC (Day 21 ADLL). Proximal end of the suture line had slight erythema. An antibiotic was started for presumed wound infection. (32) 09Dec2004 WRAMC (Day 51 ADLL). He was status post surgery and had improved, but on 18Nov had episode, heard click and had immediate severe pain. The pain and bilateral radiculopathy has been getting worse since then. He was in pain 50% of the time and with movement. Pain was currently 4/10, at its worse was 20/10. He had improved bladder function. The plan was pool therapy with physical therapy. (33) 13Dec2004 WRAMC Physical Therapy (Day 55 ADLL). New physical therapy post-operative follow-up. 2 year history of low back pain status post TLIF. Low back pain was 5/10 at rest and 20/10 with activity. He also had right leg numbness and tingling. No bowel/bladder issues, did initially have mild bladder difficulties. Walks with a cane. Range of motion was limited to less than 10 degrees all directions. Bilateral hip flexion was 5/5. Gait was antalgic. The therapist did not document any concerns about basic ADL performance. (34) 21Dec2004 WRAMC Physical Therapy (Day 63 ADLL). Pain level was 4/10. The among other exercises, the claimant performed the knee to chest 3 times for 30 seconds. (35) 30Dec2004 Physical therapy note (Day 72 ADLL). He had difficulty sleeping due to increased pain and numbness to distal right lower extremity. He reported pain when he sat longer than 20 minutes. He stated that he could not drive and he had increased pain with riding in a vehicle. He received instructions in home exercise program involving arm sets times for 30 seconds for 3 repetitions while supine, sitting, standing, and walking etc. (36) 21Jan2005 Physical Therapy note (Day 92 ADLL). Feels a little stronger, walks more, not driving. His gait was observed to be “very antalgic”. When donning his shoe, he was able to rotate, side bend, and flex 25 degrees. Recommended pool therapy. (37) 27Jan2005 WRAMC (Day 98 ADLL) visit. He had moderate improvement with bladder control issues, but worsening pain and numbness in right foot. He had been suffering with erectile dysfunction still since August 2003. (38) 18Feb2005 Physical Therapy (Day 120 ADLL) note. Extremely antalgic gait with the cane. He reported extreme pain with lying flat. He was going to pool therapy weekly; and outpatient physical therapy twice weekly. The therapist did not document any concerns about basic ADL performance. (39) 26May2005 National Capital Area DME (Durable Medical Equipment) & Medical Supplies note. Patient with Chronic Cauda Equina Syndrome, Congenital Spinal Stenosis, with very little improvement after surgery. He had profound lower extremity weakness, severe difficulty with ambulation even with a cane, recommend wheel chair. (40) 31Aug2005 WRAMC Orthopedics. Presented the history: “In early July 2003, [he] developed pain in low and upper back. Recalls no injury. Later that month noted urinary frequency and Incontinence”. (41) 19Apr2006 MEB proceeding it was determined the Cauda Equina Syndrome, Chronic Low Back Pain and Neurogenic Bladder began in 2003. MEB NARSUM annotated that “In early July 2003 soldier developed pain in his upper and lower back. He recalls no injury”. (42) 14Aug2006 PEB annotated concerning Neurogenic Bladder: “There is no specific history of an injury (or trauma)”. The long trips in a 5-ton vehicle was listed as the origin of the chronic back pain. (43) 06Sep2005 Statement of Medical Examination and Duty Status concerning Ulnar Neuritis, the document showed “accident information” date as 12Jul2005 (Washington DC). Under “Details of Accident” it was written “SM stated that on or about 12 July 2005, he experienced tingling on both upper arms. The onset of this condition was outside the claimed period for loss of ADLs. (44) 06Sep2005 Statement of Medical Examination and Duty Status concerning the Chronic Cauda Equina Syndrome, the document showed “accident information” date as 25Jul2003 (Yongsan Korea). Under “Details of Accident” it was written “SM stated that on or about 25 July 2003, he noticed he had aggravated back and neck pain. Soon thereafter, he had symptoms associated with frequent urination, and erectile dysfunction. (45) 10Jan2006 Report of Medical Examination. Concerning the right foot drop condition, weakness in the right foot was first noted during this examination. The onset of this condition was outside the claimed period for loss of ADLs. The onset is important to note because it contributed to increased use of the wheelchair later on. (46) 21Nov2006 Baltimore VA C&P Genitourinary Exam note provided the reported history for the first time that “apparently while he was in the service in June 2003, fell off a truck.” (47) 07Oct2008 Baltimore VA C&P Neurological Exam note provided that at the time, he was able to perform his activities of daily living and do his usual job as an instructor. h. Review of the medical documentation provided does not indicate that the claimant’s loss met the minimum TSGLI standard. There was no medical documentation of ADL loss after the discharge from the hospital. With the exception of catching an early wound infection, the claimant’s recovery from the surgery itself was uncomplicated. On 09Dec2004, Day 51 after the claimed loss of ADLs, he reported that he had been improving, but on 18Nov he “had episode and heard a click” and had immediate severe pain. The pain and bilateral radiculopathy has been getting worse since then. Lumbosacral film on that date showed no evidence of hardware complication and normal alignment. On Day 55, the claimant was walking with a cane. He had full use of both upper extremities, unimpeded by pain, numbness, tingling or any other limitation during the loss of ADL claim period. He would be able to bathe independently with or without assistive equipment; and use his arms to assist with transfers even with regard to spine precautions. In addition, he would be able to adjust clothing to toilet independently. During that time period, he was reporting pain greater than 50% of the time, with movement. Pain was 4/10, but at its worse, could be 20/10. The claimant also reported significant levels of pain prior to surgery. Based on review of available evidence, the claimant’s loss did not meet the minimum requirements for a loss of 2 ADLs under TSGLI standard for 30 days, for traumatic injury other than traumatic brain injury. The claimant suffers from a very serious and debilitating condition. It is also acknowledged that Cauda Equina Syndrome can progress slowly and onset of symptoms can be obscured; however, there should not be ambiguity as to when a traumatic event took place. There was a wide variation in documentation for the onset of the lower back condition. There was no medical documentation of an 11Jun2003 traumatic event. Medical documentation indicating the claimant’s loss (the conditions which resulted from the Cauda Equina Syndrome) was the direct result of a traumatic event, was not found. Recommend: Medical evidence does not support that the claimant’s loss met the requirements for a loss under TSGLI. BOARD DISCUSSION: After reviewing the application and all supporting documents, the Board found that relief was partially warranted. a. Board members noted the applicant was injured on 11 June 2003 during a military training exercise in Korea when he fell 15 feet off a fuel tanker onto concrete. He was evaluated 2 months later for urinary frequency. His symptoms gradually worsened to include severe low back pain, loss of bowel/bladder control, erectile dysfunction, and bilateral weakness. He was medically evacuated to Walter Reed Army Medical Center. He underwent lumbar spine fusion surgery with no improvement of his symptoms. He then began physical therapy with limitations due to severe pain and right foot drop. He ultimately retired due to disability. Board members found sufficient evidence that he needed assistance with activities of daily living (ADLs) from his wife in eth areas of bathing, dressing, maintaining continence, and transferring due to symptoms of debilitating pain, for 30 days and voted to grant partial relief. 2. The Board found insufficient medical evidence to support a loss under the TSGLI for more than 30 days. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF :X :X :X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by showing the applicant is authorized a TSGLI payment in the amount of $25,000.00 due to the loss of two ADL for more than 30 days. 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to approval of his TSGLI claim in the amount of $100,000 for loss of activities of daily living. 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. 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. 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. 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. 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 up to $100,000.00 to severely injured Servicemembers who meet the requisite qualifications set forth by the Department of Defense. The current TSGLI Procedural Guide is Version 2.48 published in January 2021. A Servicemember must meet all of the following requirements to be eligible for payment of TSGLI. The Servicemember must have: * been insured by SGLI at the time of the traumatic event * suffered a scheduled loss that is a direct result of the traumatic injury due to a traumatic event and no other cause * 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 event * survived for a period of not less than 7 full days from the date of the traumatic event (in a death-related case) a. A traumatic injury is the physical damage to a body that results from a 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. The event must involve a physical impact upon the individual. Physical impacts do not require penetrating injuries to occur. Direct result means there must be a clear connection between the traumatic event and the resulting loss and no other factor, aside from the traumatic event can play a part in causing the loss. b. The TSGLI Procedural Guide lists two types of TSGLI scheduled losses, categorized as Part I and Part II. (1) Part I (General Provisions) states for losses listed in Part 1, multiple injuries resulting from a single traumatic event may be combined with each other and treated as one loss for purposes of a single payment. The total payment may not exceed $100,000. There are nine categories of losses covered: sensory losses, burns, paralysis, amputation, limb salvage, facial reconstruction, Activities of Daily Living (ADLs), inpatient hospitalization and genitourinary losses. (2) Part II loss payments may not be combined with payment amounts in Part 1, only the higher amount will be paid. The total amount paid may not exceed $100,000. Traumatic injuries resulting in the inability to perform at least two ADLs 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 ADLs, 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 ADLs 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. c. Appendix B (Glossary of Terms) of the TSGLI Procedures Guide, dated January 2021, provides the following definitions: (1) 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 (2) Traumatic Injury: The physical damage to a living body that results from a traumatic event. (3) 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. 3. The injured Servicemembers who suffered a scheduled loss will be paid the traumatic injury protection benefit in accordance with Title 38, U.S. Code, section 1975 and Title 38 Code of Federal Regulations (CFR) section 9.13. If a member is legally incapacitated, the member’s guardian or agent or attorney acting under a valid power of attorney will be paid the benefit on behalf of the member. 4. Title 38 CFR, section 9.20 provides for traumatic injury protection: a. Section 9.20 (b) states a traumatic event is the application of external force, violence, chemical, biological, or radiological weapons, or accidental ingestion of a contaminated substance causing damage to a living being on or after 1 December 2005. A traumatic event does not include a medical or surgical procedure in and of itself. b. Section 9.20 c states a traumatic injury is physical damage to a living body that is caused by a traumatic event. A traumatic injury does not include damage to a living body caused by a mental or physical illness or disease, except if the physical illness or disease is caused by a pyogenic infection, biological, chemical, or radiological weapons, or accidental ingestion of a contaminated substance. All traumatic injuries will be considered to have occurred at the same time as the event. c. Section 9.20 (e) (4) states a benefit will not be paid if a scheduled loss is due to a traumatic injury caused by diagnostic procedures, preventative medical procedures such as inoculations, medical or surgical treatment for an illness or any complications arising from such procedures or treatment. d. Section 9.20 (e) (6) (vi) defines the term inability to carry out activities of daily living as the inability to independently perform at least two of the six following functions: * Bathing * Continence * Dressing * Eating * Toileting * Transferring in or out of a bed or chair with or without equipment e. Section 9.20 (e) (6) (xx) defines the term amputation meaning the severance or removal of a limb or genital organ or part of a limb or genital organ resulting from trauma or surgery. With regard to limbs an amputation above a joint means a severance or removal that is closer to the body than the specified joint is. f. Section 9.20 (e) (6) (xxi) defines the term anatomical loss of the penis as defined as amputation of the glans penis or any portion of the shaft of the penis above the glans penis (i.e. closer to the body) or damage to the glans penis or shaft of the penis that requires reconstructive surgery. g. Section 9.20 (e) (6) (xxii) defines the term permanent loss of use of the penis as defined as damage to the glans penis or shaft of the penis that results in complete loss of the ability to perform sexual intercourse that is reasonably certain to continue throughout the lifetime of the member. h. Section 9.20 (e) (6) (xxix) defines the term permanent loss of urinary system function as damage to the urethra, ureter(s), both kidney, bladder, or urethral sphincter muscles(s) that requires urinary diversion and/or hemodialysis, either of which is reasonably certain to continue throughout the lifetime of the member. i. Section 9.20 (g) states each uniformed service will certify its own members for traumatic injury protection benefits based upon section 1032 of Public Law 109-13, section 501 of Public Law 109-233, and this section. j. Section 9.20 (f) states multiple losses resulting from a single traumatic event may be combined for purposes of a single payment, however, the total payment amount may not exceed $100.000.00. If the loss is: * Anatomical loss of the penis, $50,000.00 * Permanent loss of the penis, $50,000.00 * Total and permanent loss of urinary system function, $50,000.00 * Traumatic injury, other than traumatic brain injury, resulting in inability to perform at least 2 Activities of Daily Living (ADL): * at 30th consecutive day of ADL loss, $25,000.00 * at 60th consecutive day of ADL loss, an additional $25,000.00 * at 90th consecutive day of ADL loss, an additional $25,000.00 * at 120th consecutive day of ADL loss, an additional $25,000.00 k. Section 9.20 (i) (3) states nothing in this section precludes a member from pursuing legal remedies under Title 38, U.S. Code, section 1975 or 38 CFR section 9.13. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20200008077 30 ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS 1