DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 7880-17 APR 23 2018 Dear , This is in reference to your application for correction ofyour naval record pursuant to the provisions of 10 USC§ 1552. Your case was remanded to the-Board for Correction ofNaval Records (hereinafter referred to as the Board) by the , No. , which issued a Remand Order on 31 August 2017. Your case was reconsidered in accordance with that order and procedures that conform to Lipsman v. Secretary ofthe Army, 335 F. Supp. 2d 48 (D.D.C. 2004). You were previously denied relief by this Board on 22 April 2016. The court order remanded your case to allow the Board the opportunity to review your complete medical history, as well as additional material submitted in support ofthe claim you filed under the Traumatic Servicemembers' Group Life Insurance (TSGLI). A three-member panel ofthe Board for Correction ofNaval Records, sitting in executive session, considered your application on 8 March 2018. The names and votes ofthe members of the panel will be furnished upon request. Your allegations oferror and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings ofthis Board. Documentary material considered by the Board consisted ofyour application, together with all material submitted in support thereof, relevant portions of your naval record and medical record, applicable statutes, regulations and policies. Your entire case file, including your postremand order correspondence dated 11 September 2017 and all matters previously submitted by you, were forwarded to the Director, Secretary ofthe Navy, Council ofReview Boards (CORB), and considered in formulating the advisory opinion and recommendation. The advisory opinion provided in Director, Secretary ofthe Navy, Council of Review Boards letter 1770 CORB dated 21 February 2018 was sent to you the same day for an opportunity to comment prior to being considered by the Board. A copy of this advisory opinion is again enclosed. Your response was received on 22 February 2018, and was included in your complete case file for review by the Board in making their determination on your request. A review of your record shows that. on 20 August 2011, while in Afghanistan working on unexploded ordinance, you suffered injuries to both hands, including multiple partial finger and thumb amputations. You were initially treated at , where you underwent numerous surgeries, and were subsequently transferred to where you received medical care. You were awarded $25,000.00 under the TSGLI for 15 days inpatient hospitalization. You subsequently filed additional TSGLI claims for loss ofactivities ofdaily living (AD Ls) totaling over 90 days. Specifically, your claims addressed your inability to independently bathe and dress without physical assistance for the 2nd and 3rd milestones at 60 and 90 consecutive days ofADL losses (the 15 day inpatient hospitalization replaced the 1st 30-day ADL milestone). Your requests were denied and appealed through the TSGLI Appeals Board which denied your appeal on two separate occasions. On 22 April 2016, your request was denied by this Board, which concluded that you did not require assistance .in performing AD Ls beyond 26 September 2011. In accordance with the previously cited Order, this Board carefully considered your arguments that the TSGLI office and subsequent Department ofNavy.appellate authorities wrongfully denied your request for payment ofTSGLI due to your ADL loss ofover 90 consecutive days, but less than 120 days. You contend that their findings are Ii.ot consistent with TSGLI guidelines or the "relevant evidence" in this case. However, the Boitrd did not agree with your rationale for relief. After careful and conscientious consideration ofyour medical record, and all documents you submitted in support ofyour claim, the Board found that the evidence was insufficient to establish the existence ofa material error or injustice. The Board was extremely sympathetic to the severity ofyour injuries and the difficulties you encountered with performing AD Ls, however, they felt there was conclusive evidence that you did not requ.ire assistance in performing your ADLs beyond 26 September 2011. In th.is connection, the Board substantially concurred with the comments conta.ined in the advisory opinion provided by CORB. TSGLI Guidelines define ADLs as routine self-care activities that a person normally performs every day without needing assistance. A member is considered to have a loss ofADL ifthe member requires assistance to perform at least two ofthe six ADLs. However, ifthe patient is able to perform the activity by using accommodating equipment (such as a cane, walker, commode, etc.) or adaptive behavior (such as wearing loose clothing and loafers, or keeping container lids open), the patient is considered able to independently perform the activity. When reviewing your request, the Board considered all ofthe evidence in light ofthe TSGLI Guidelines. When reviewing your record, the Board highlighted that the occupational therapy (OT) notes from 8 September 2011 state that you were "completely independent" in performing your ADLs, to include bathing and dressing. By 26 September 2011, the OT notes show that you were able to put on pants independently and adapted your behavior by wearing "sweatpants, stretchy pants, [and] that sort ofstuff," as documented in your wife's statement of 1O June 2015. The notes also state that "showering is fine as long as the containers are open," which also qualifies as an adapted behavior that allowed for functional independence. The Board noted that various documents in the record discuss your continued difficulty to manipulate buttons, zippers, personal hygiene containers, water knobs and other tasks that require fine motor skills. These records include, but are not limited to, the OT notes dated 26 September 2011, e-mail of 12 Jurie 2012, your statement of9 June 2015, your wife's statement of 10 June 2015, and the correspondence from/between you and . The Board considered your argument that your disability ofthe arm, shoulder and hand (DASH) score indicated that you were "minimal functional capacity/dependent"; however, the Board noted that the self-rated assessment did not affect the Board's assessment ofyour ADL independence based on the OT notes discussed previously. The Board also considered letter dated 29 June 2012, which provided a general assessment that"[a]ctivities using buttons, forks, knives, bottles, food items, [and] personal hygiene products are difficult with these types ofdigital impairments and loss." While the Board fully appreciated the impact that the loss of fine motor skills have had on your daily routine, the Board concurred with CORB that the inability to master fine motor functions does not equate to an inability to perform an ADL independently. The Board concluded that although you either did not receive, or could not manipulate, accommodating equipment such as a pincher grasp or a button hook aid, you were able to adapt your behavior to successfully perform all AD Ls independently by 26 September 2011. The Board carefully considered your argument that the OT notes from conflicted with subsequent medical evaluations and/or declarations provided by you and your wife. However, the Board did not concur with your contention. The Board concluded that the medical evaluations were consistent in their assessment of the limitations you experienced while performing fine motor tasks; however, the Board identified that a disparity occurred in the application ofthe TSGLI Guidelines' definition ofan individual's ability to "independently perform the activity" and whether the member "requires assistance." The Board felt that the most accurate and germane medical review was documented by the ·inpatient OT notes issued by The Board highlighted that not only are these notes more proximate in time to the injury, but the purpose ofthe OT inpatient evaluation is to determine the level of assistance that will be required when the patient transitions home or to a rehabilitation facility. During this evaluation, the definitions established in the TSGLI Guidelines are reviewed and applied to the specific case circumstances. The BQard considered the notes made by , Orthopedic Surgeon, on 13 March 2012, which state that assistance was required with ADLs (specifically bathing and dressing) for roughly three months. However, the Board concluded that there was a: lack of specificity in the medical assessment, in regards to both the specific timeframe ofthe required assistance, and as to whether assistance was required when behavior was adapted to achieve independence. The Board also considered the Request for Non-Medical Attendant order signed by , which documented the need for assistance with dressing, bathing, and setting up a food tray for the duration of90 days and your email to Again, the Board felt that order lacked specificity, and, as the order was not dated and was never processed or approved, it did not provide an accurate assessment ofyour abilities in light ofthe TSGLI Guidelines. Finally, the Board considered the 2013 and 2015 statements provided by which generally discussed your inability to perform the AD Ls related to bathing and dressing without assistance, but did not address whether assistance was required when behavior was adapted to achieve independence. After reviewing all ofthe evidence, the Board concurred with the advisory opinion that the assessment conducted by the OT staff at , which was more proximate in time to the injury, is a more accurate review and application ofthe TSGLI Guidelines than the other medical assessments submitted in support of your claim. In your post-remand order correspondence dated 11 September 2017, you argue that per 38 U.S.C. § 5107(b), the standard applicable in this case is of"substantial evidence," meaning: "[w]hen there is an approximate balance ofpositive.and negative evidence regarding any issue material to the determination ofa matter, the Secretary shall give the benefit ofthe doubt to the claimant." The substantial evidence standard under 38 U.S.C. § 5107 applies specifically to cases before the Secretary of Veterans Affairs (SVA). Service secretaries, not the SV A, must certify whether a member has sustained a qualifying loss to obtain TSGLI benefits. This "benefit of the doubt" standard ofreview does not extend to this certification decision made by the service secretaries. Per SECNAVINST 1770.4, "Secretary ofthe Navy Traumatic Injury Servicemembers' Group Life Insurance Implementation Guide and Appeals Process," the evidentiary standard for TSGLI determinations is "preponderance ofthe evidence." The Board found that even if arguendo, it were to apply the "benefit ofthe doubt" standard, the evidence was not in equipoise, or approximately balanced, and the evidence in your case clearly supports the decision ofthis Board. While there is evidence that your injuries were severe and you received assistance in performing AD Ls from your spouse beyond 26 September 2011 due to your lack offine motor skills, the preponderance of the evidence overwhelmingly signaled that you did not require that assistance, as defined by the TSGLI Guidelines, and were able .to perform your AD Ls independently after that date. Based on this finding by the Board, they concluded, regrettably, that you do not qualify for additional TSGLI payments beyond the $25,000 you received for your period ofhospitalization. Accordingly, the Board was unable to find an error or injustice warranting a correction to your record and denied your application. Regarding your request for a personal appearance, the Board determined that a personal · appearance with or without counsel will not materially add to their understanding of the issues involved·. Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence ofrecord. In accordance with 10 USC 1552(a), requests for reconsideration will only be considered if supported by materials not previously presented to or considered by the Board. Ifyou wish to continue to seek relief you will need to present your concerns to a court ofappropriate jurisdiction. Sincerely, Executive Director