DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 10241-18 Ref: Signature Date 

This is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552.  After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (Board) found the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied.  
  
A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 25 November 2019. The names and votes of the members of the panel will be furnished upon request.  Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board.  Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, relevant portions of your naval record, and applicable statutes, regulations, and policies. 

You began your honorable service in the Marine Corps in December 2010.  On 24 February 2016, you were involved in motorcycle accident.  You were operating your motorcycle discharged on 27 February 2016, with medical notes stating that you required supervision for safety and verbal cues for sitting to standing and standing to sitting transfers, as well as ambulation and stairs.  Your occupational therapy evaluation dated 26 February 2016, stated that you needed stand by assistance (SBA) for hygiene and supervision for toileting and contact guard assist (CGA) for transfers.  Your Morse fall risk score on the date of discharge was 45, which indicates moderate/borderline high risk of falling.  Upon discharge, your physician documented limitations to include refraining from any heavy lifting, bending, climbing sports or motorcycling, and obtaining clearance from your military physician prior to resuming all physical activity and returning to military work. Your medical records from March 2016 note that you were placed Sick in Quarters (SIQ), having headaches, having trouble with word finding, and using medication for nightly pain management.  In April 2016, you presented with a Montreal Cognitive Assessment score of 20, and diagnosed with cognitive decline.  You were enrolled in the Concussive Care Clinic.  On 26 April 2016, you were assessed by Neurology and it was noted that you were forgetting things and had a decrease in short term memory. You were assigned to light duty but were anticipated to fully recover. You petitioned Headquarters Marine Corps for Traumatic Injury Service Members’ Group Life Insurance (TSGLI); you were notified that your “loss did not meet the TSGLI criteria” and that your claim had been denied. Through counsel, you responded to the denial and noted that the denial letter did not address both the OTI Activities of Daily Living (ADL) and the TBI ADL losses. On 3 October 2016, Headquarters Marine Corps responded, stating in its letter that the claim was not approved.  The letter noted that a panel of two Medical Officers and a Registered Nurse reviewed your claim, and concluded that the medical documents provided did not adequately confirm that you experienced ADL loss.  On 25 October 2016, you responded through counsel and asserted that the letter only addressed TBI-related ADL losses and does not reflect non-TBI losses.  You asked for reconsideration, that specific findings be made, and that each ADL milestone be addressed separately.  On 21 November 2016, Headquarters Marine Corps notified you that your claim had not been approved.  You responded on 7 December 2016, seeking $50,000 in compensation.  You provided a review from an Independent Nurse Reviewer dated 22 July 2016, which found that from 24 February 2016 through 16 March 2016, you could not independently perform ADLs of bathing, toileting, and transferring due to symptoms of TBI.  For over a month you could not perform ADLs of bathing/grooming and dressing with your right arm due to severe road rash.  You also claim that your wife, mother, and roommates provided physical and standby assistance and verbal cues at this time. You provided your own personal statement and written statements from your wife and from your mother which discuss your limitations and struggles following your accident.  On 22 March 2017, the Counsel of Review Boards (CORB) voted unanimously to disapprove your request. You continued to appeal the denial of your TSGLI claim, with your most recent effort being your current submission of the Application for Correction of Military Record under the Provisions of Title 10, U.S. Code, Section 1552 (DD Form 149) to the Board. 

In your DD Form 149, you ask for 15 days of ADL losses due to TBI as well as 30 days of ADL losses due to non-TBI.  You state you have applied for eight types of ADL assistance; you note that SECNAVINST 1770.4 series only requires two types of ADL assistance for receipt of benefits.  You assert that you required physical verbal and stand-by assistance with bathing; physical and verbal assistance with dressing, stand-by assistance for toileting, and physical and stand-by assistance for transferring.  You contend that the ADL losses have been inadequately and improperly assessed throughout the review process and seek a de novo review to allow a finding of 15 days of ADL losses due to TBI and 30 days of ADL losses due to non-TBI for all eight ADLs claimed. 

The Board, in its review of your entire record and application, carefully weighed all potentially mitigating factors, including your personal statement, the personal statements of your mother and your wife, and the input of the Independent Nurse Reviewer.  The Board also noted your concerns regarding the review process that had thus far resulted in the denial of your TSGLI benefits. The Board considered your contention of entitlement for TSGLI based on the following eight ADLs losses, with 15 days related to TBI and 30 days related to non-TBI for all eight: (1) physical assistance while bathing; (2) verbal assistance while bathing; (3) stand-by assistance while bathing; (4) physical assistance with dressing; (5) verbal assistance while dressing; (6) stand-by assistance with toileting; (7) physical assistance with transferring; and (8) stand-by assistance with transferring.  The Board noted that your previous denials appear to be based in part on lack of clear medical records documenting the ADL losses for the 15 and 30 day periods for TBI and non-TBI injuries, respectively.  The Board reviewed the medical documentation following your accident from 24 February 2016 through April 2016, and considered the information reflected in your medical caregivers’ notes.  The medical records document your injuries to include severe road rash and a TBI, with cognitive decline. A loss of ADLs is not specifically documented for the 15 day or 30 day period. The Board considered the determination of the Independent Nurse Review recommending approval of the TSGLI due to ADL losses, as compared with the unanimous denial of TSGLI benefits by two Medical Officers and a Registered Nurse at the Headquarters Marine Corps level. The Board weighed the information in your personal statement as well as that of your wife and mother.  The Board noted that your mother, Ms. stated that she stayed with you for “over a week” after you were released from the hospital and that she spoke with you by phone and remarked upon your inability to remember things and your ongoing reports of struggles with dizziness. 
 
Your wife, stated that you were sluggish, did not want to move, could not walk up and down stairs, and someone (either she or a roommate) had to help you.  Your wife reported that you stayed in your room 90% of the time, and that you reported being dizzy for the first month.  She also reported that your roommates worked nights and she worked during the day so there was always someone at home with you.  The Board also considered your personal statement.  The Board concluded that while the personal statements establish that your wife and roommates provided you support by being nearby while you recuperated at home, and that you struggled with dizziness and memory loss and received some support in dressing at times, that there is not sufficient evidence to support a finding that you had a loss of any of the eight ADLs for the entirety of 15 days due to TBI and/or for the entirety of 30 days due to your non-TBI injuries to include road rash.  The Board noted that your roommate(s) did not provide statements and your medical providers did not comment specifically on the need for supportive care or loss of ADLs. Even in consideration of the Independent Nurse Reviewer, the Board noted that the medical reviewers at Headquarters Marine Corps came to a different conclusion based on your medical records and evidence submitted in support of your receipt of TSGLI. The Board found that while you suffered a serious injury in your February 2016 motorcycle accident, there is insufficient evidence to find that there is an error or injustice in your service record that merits the award of TSGLI. 

Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to its understanding of the issues involved.  Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. 

It is regretted that the circumstances of your case are such that favorable action cannot be taken.  You are entitled to have the Board reconsider its decision upon submission of new matters, which will require you to complete and submit a new DD Form 149.  New matters are those not previously presented to or considered by the Board.  In this regard, it is important to keep in mind that a presumption of regularity attaches to all official records.  Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice.