DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 JLB Docket No. 1903-18 APR 2 5 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 United States District Court for the. which issued a Remand Order on 19 September 2017. Your case was reconsidered in accordance with that order and procedures that conform to Lipsman v. Secretary of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). You were previously denied relief by this Board on 3 November 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 of the claim you filed under the Traumatic Servicemembers' Group Life Insurance (TSGLI), using the benefits schedule established for loss ofactivities ofdaily living (AD Ls) due to a traumatic brain injury (TBI). A three-member panel ofthe Board for Correction ofNaval Records, sitting in executive session, considered your application on 29 March 2018. The names and votes ofthe members ofthe 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 ofthis Board. Documentary material considered by the Board consisted ofyour application, together with all material submitted in support thereof, relevant portions ofyour naval record and medical record, applicable statutes, regulations, and policies. This office forwarded your entire case file, and all matters previously submitted by you to the Director, Secretary of the Navy (SECNAV), Council of Review Boards (CORB) for purposes of obtaining an advisory opinion. The Director SECNA V CORB issued an advisory opinion in a letter dated 22 February 2018. Please note that the SECNAV CORB advisory opinion included a complete review ofthe evidence and a recommendation made by a CORB medical officer, as well as the head ofthe Physical Evaluation Board Plans, Policy and Operations division. You were afforded an opportunity to review and comment on the SECNA V CORB advisory opinion, and you provided a response on 27 February 2018. We included both CORB advisory opinion, and your response to that opinion, in the case file submitted to the Board for review. JLB Docket No. 1903-18 A review of your record shows that on 6 February 2013, you suffered a traumatic brain injury (TBI) with multiple facial fractures, abrasions, and a left ankle iajury after being physically assaulted by an unknown assailant. You were initially treated at the on 7 February 2013, then emergently transported to the Your diagnosis included severe maxillofacial fractures, left anterior orbital rim fracture, left mandibular condyle anterior subluxation, epidural hematoma right posterior parietal lobe, right subarachnoid hemorrhage, significant left cheek and left periorbital edema, a right forehead abrasion, right upper eyelid ecchymosis with mild ptosis secondary to edema, and left ankle pain with edema. You remained in the Intensive Care Unit until you were discharged from the hospital on9 February 2013. You subsequently filed a TSGLI claim for loss ofADLs due to a TBI on 17 July 2014. Specifically, your claim addressed your inability to independently bathe, dress, toilet, and transfer without physical assistance for over 15 days but less than 30 days. Your request was denied and appealed through the TSGLI Appeals Board which denied your appeal on 4 January 2016 and your reconsideration request on 8 January 2016. On 3 November 2016, your request was denied by this Board, which concluded that there was a lack ofmedical evidence that specified your inability to independently perform your AD Ls. In accordance with the previously cited U.S. District Court Order, this Board carefully considered your argument that the TSGLI office and subsequent Department ofNavy appellate authorities wrongfully denied your request for payment ofTSGLI due to your ADL loss of over 15 days, but less than 30 days. However, the Board did not agree with your rationale for relief. After careful and conscientious consideration of your medical record, and all documents you submitted in support of your claim, the Board found that the evidence was insufficient to establish the existence ofa material error or injustice. In this connection, the Board substantially concurred with the comments contained in the advisory opinion provided by the CORB. TSGLI Guidelines define AD Ls as routine self-care activities that a person normally performs every day without needing assistance. A member is considered to have a loss of ADL ifthe member requires assistance to perform at least two ofthe six ADLs. In cases involving loss of AD Ls due to a TBI, the benefits schedule establishes that the first milestone marker occurs at the l 51h consecutive day vice the 301h consecutive day. When reviewing your request, the Board considered all of the evidence in light ofthe TSGLI Guidelines. While admitted to the , you were treated by numerous healthcare professionals. During this period of medical supervision and treatment, no neurological deficits were noted other than mild blurry vision that an ophthalmologist assessed to have existed prior to the injury. Cerebellar testing, which is used to assess dizziness due to brain impairment, was administered on 7 February 2013 and rendered a normal result. Medical notes dated 8 February 2013 report that you had a headache that was responsive to Tylenol and your pain was rated at 4 out of 10. You reported no nausea or vomiting. The notes specifically state that you were able to ambulate to the commode and wheelchair without assistance, demonstrate steady balance and gait, and follow both simple and complex commands. On 9 February 2013, the " Modified Fall Risk Assessment Tool" reported no assistance required with mobility, no gait problems, no visual/auditory impairment, and no altered awareness of environment. At the time ofdischarge, you were deemed sufficiently independent to be discharged in the care ofyour non-medical spouse with no skilled nursing made available. 2 JLB Docket No. 1903-18 Although you submit that you were authorized non-chargeable convalescent sick leave as evidence that you had a loss ofAD Ls, this type of leave is frequently granted to sick and· wounded Marines who have been admitted to a hospital and are not yet fit for return to duty; however, it has no bearing on whether a member has a loss ofAD Ls. During your screening exam for neurological disorders including TBI with , on 21 February 2013, you reported feeling "spacey," having trouble with memory artd concentration, poor sleep, and irritability. You reported headaches, but stated that they were responsive to over the counter Tylenol and ice packs. During the initial TBI screening, you did not report to the Neuropsychologistthat you were experiencing dizziness with vertigo or an unsteady gait, nor did you report that the severity ofyour headaches resulted in your inability to perform basic tasks such as bathing, dressing, toileting, and transferring without the physical and stand-by assistance ofyour spouse. You also did not report that you could not walk or bend over, or that you felt that you were going to pass out, as indicated in your statement of 17 July 2014. You did not ask for skilled nursing assistance·or request a treatment plan to address your inability to independently perform your AD Ls. During your Neurosurgery followup on 13 March 2013, remarked that although you occasionally continued to have headaches, you responded well to Tylenol. While you reported some nausea, you denied any vomiting, numbness or weakness, gait difficulty, or any seizures following your trauma. found that your strength was five out offive in all four extremities; you had a · narrow-based gait, with an appropriate arm swing. found you would be able to return to work for administrative/clerical type duties. Again, you made no report to your treating · physician that you were unable to independently perform your AD Ls as a result ofyour injuries. A follow-up medical assessment was conducted by on 7 May 2013, which reported that although you were experiencing some dizziness, you were on full duty and able to perform your job duties without difficulty. · The Board carefully considered your argument that the previous review authorities ignored or unjustifiably discounted the statements and medical records that you submitted in support of your claim. However, the Board did not concur with your contention. The Board felt that the most accurate and germane medical review was documented by the inpatient notes issued by and the subsequent medical reviews conducted in the weeks immediately following your injury. The Board highlighted that not only are these notes more proximate in time to the injury, but evaluated your capabilities prior to discharge to determine the level of assistance that would be required once you were convalescing at home. At the time of your discharge from the hospital, you were ambulating without assistance and able to independently perform your ADLs. The Board considered the statement provided by , dated 19 April 2015, which posited that due to the "evolving hematoma" found on the noncontrast head CT performed on 12 March 2013, your condition likely worsened upon discharge from the hospital before it got better. concluded that based on this information, it is reasonable to conclude that you were experiencing "debilitating symptoms" which resulted in required assistance with performing your ADLs (specifically bathing, dressing, toileting, and transfer) for 26 days after returning from the hospital. However, the Board concluded that had you been experiencing symptoms so severe thatthey rendered you debilitated and incapable ofperforming 3 JLB DocketNo. 1903-18 basic AD Ls, you would have sought additional medical attention for pain management or skilled ·nursing assistance immediately following your discharge from the hospital. The Board further noted that, at the very least, you would have reported these debilitating symptoms and their impact on your ability to independently perform your AD Ls during the TBI screening with the Neuropsychologist on 21 February 2013, which was day 12 of the days you claim to have required assistance with ADLs. The Board also considered the statements provided by·you and your spouse on 17 July 2014, which state that your spouse assisted you with bathing, dressing, toileting and transferring for at least 26 days. Although these statements explain that you did receive assistance from your spouse, the Board was not convinced that such assistance was required. The Board noted your claim that you could barely walk, couldn't bend over, and felt like you were going to pass out, but questioned why you did not report such severe symptoms during the TBI screening with the Neuropsychologist on 21 February 2013. Finally, the Board considered the statement provided by , dated 17 July 2014, which stated that without your spouse's physical and stand-by assistance, you would have been unable to independently perform your AD Ls while on convalescent leave and would have been put at a greater risk for falls and further injury. The Board felt that ' statement lacked supporting evidence, as she cited to the post-discharge medical notes that the Board concluded did not support your loss ofAD Ls, as explained above. After comparing the affidavits submitted iri support ofyour claim with the notes captured by medical professionals more proximate in time to your injury, the Board decided to assign more weight to the treatment notes and subsequent medical reports issued within the weeks immediately following your trauma. In your response to the advisory opinion dated 27 February 2018, 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 of a 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 (SV A). Service secretaries, not the SV A, must certify whether a member has sustained a qualifying loss to obtain TSGLI benefits. This "benefit ofthe doubt" standard ofreview does not extend to this certification decision made by the service secretaries. Per SECNAVINST 1770.4, "Secretary of the Navy Traumatic Injury Servicemembers' Group Life Insurance Implementation Guide and Appeals Process," the evidentiary standard for TSGLI determinations is "preponderance of the evidence." The Board found that, even if arguendo it were to apply the "benefit of the doubt" standard, the evidence in the instant matter did not weigh in your favor or even result in an equal balance that would result in a benefit ofthe doubt to you, rather, the Board found that the evidence clearly weighed in favor ofdenying relief. After reviewing all ofthe medical records and material submitted by you in support of your claim, and after resolving all doubt in your favor, the evidence still does not support your claim that you required assistance to perform at least two activities of daily living for a period over 15 days but less than 30 days due to your TBI. While there is evidence that you received assistance in performing ADLs from your spouse, the preponderance ofthe evidence overwhelmingly signaled that you did not require that assistance, as defined by the TSGLI Guidelines. Based on this finding by the Board, they concluded, regrettably, that you do not qualify for TSGLI payments. Aci;ordingly, 4 JLB Docket No. 1903-18 the Board was unable to find an error or injustice warranting a correction to your record and denied your application. In accordance with 10 USC 1552(a), requests for reconsideration will only be consideredif 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 of appropriate jurisdiction. Sincerely, ~~~v~ Executive Director Enclosure: Director, Secretary ofthe Navy, Council ofReview Boards !tr 1770 CORB dtd 22 Feb 18 5