AR20160004939

IN THE CASE OF:

BOARD DATE: 31 March 2016

DOCKET NUMBER: AR20160004939

BOARD VOTE:

____X_____ ___X____ ____X____ GRANT FULL RELIEF

________ ________ ________ GRANT PARTIAL RELIEF

________ ________ ________ GRANT FORMAL HEARING

________ ________ ________ DENY APPLICATION

2Enclosures
1. Board Determination/Recommendation
2. Evidence and Consideration

IN THE CASE OF:

BOARD DATE: 31 March 2016

DOCKET NUMBER: AR20160004939

BOARD DETERMINATION/RECOMMENDATION:

The Board determined the evidence presented is sufficient to warrant a recommendation for 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 30days.

____________X_____________
CHAIRPERSON

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.

IN THE CASE OF:

BOARD DATE: 31 March 2016

DOCKET NUMBER: AR20160004939

THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1. Application for correction of military records (with supporting documents provided, if any).

2. Military Personnel Records and advisory opinions (if any).

THE APPLICANT’S REQUEST, STATEMENT, AND EVIDENCE:

1. This case comes before the Army Board for Correction of Military Records (ABCMR) on a remand from the U.S.District Court, Northern District Alabama, Northeastern Division.

2. On 4January 2016, the court found the ABCMR’s denial of the applicant’s request for Traumatic Servicemembers’ Group Life Insurance (TSGLI) to have been arbitrary and capricious. The court also noted that Title5, U.S.Code, section706(2), did not permit the court to order damages. The case was remanded to the ABCMR “to certify the applicant’s eligibility for benefits as set forth in his request for benefits, based on his inability to perform the activities of daily living (ADL) of bathing and dressing.”

CONSIDERATION OF EVIDENCE:

1. The applicant was serving in Iraq when he cut his right hand while clearing his M9 service pistol on 14January 2010 and he ate potentially-contaminated local food with his Iraqi counterparts on 16January 2010. He was medically evacuated through Germany and treated at WalterReed Army Medical Center.

2. Medical records, dated between 5February and 26 February 2010, show:

a. He was found to have a pyogenic (severe pus producing) staphylococcal infection. This primarily affected his right chest and shoulder, resulting in a mass in his chest and septic arthritis of the shoulder.
b. After a drain pump was surgically installed in his chest, he initially received home health care to clean the drain, change bandages, and provide intravenous medications.

3. Follow-up visits by home health aides continued from February to June 2010.
It appears that his wife may have assumed these tasks as she learned to do so.

4. The applicant’s TSGLI claim was denied by the U.S.Army Human Resources Command (HRC) on 4June 2010 because his loss was determined not to be a direct result of a traumatic event. Under TSGLI, a traumatic event is defined as “the application of external force, violence, chemical, biological, or radiological weapons, accidental contaminated substance, or exposure to the elements that caused damage to a living being.”

5. A 25June 2010 memorandum from Dr.J____P____, a physician at the WalterReed Medical Primary Care Clinic, indicates:

* “in her professional opinion the information contained in the applicant’s appeal memorandum is accurate”
* his illness was due to a pyogenic bacterium that caused physical damage to his body (pyogenic infection) sternoclavicular osteomyelitis
* septic arthritis that resulted in surgeries
* due to his illness a non-medical assistant was assigned to assist in bathing and dressing
* he required non-medical assistance for more than 30days

6. On 5August 2010, the applicant’s TSGLI claim was denied by HRC after a physician’s review of his previous claim determined his loss of ADL were due to an illness and not a traumatic event.

7. On 11July 2011, his final appeal was disapproved by HRC because the documentation provided did not indicate he suffered a loss resulting from a qualifying traumatic event defined as the application of external force, violence, chemical, biological, or radiological weapons, accidental contaminated substance, or exposure to the elements that caused damage to the body.

8. The ABCMR denied the applicant’s requests for payment of TSGLI on 12February 2013 and 22April 2014 because he had not shown his medical conditions were due to a traumatic event.

REFERENCES:

1. Public Law109-13 (The Emergency Supplemental Appropriations Act for Defense, the Global War on Terror, and Tsunami Relief 2005), signed by the President on 11May 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 and $100,000.00 to severely-injured Soldiers who meet the requisite qualifications set forth by the Department of Defense.

2. As of 1December 2005, TSGLI is included as part of a Soldier’s SGLI coverage. Any Soldier who elected SGLI coverage automatically receives TSGLI coverage with an additional $1.00 deducted each month to cover the cost of the TSGLI policy. Soldiers paying for SGLI coverage cannot decline TSGLI it is a package.

3. A TSGLI Procedures Guide, rather than Department of Defense or Service regulations, sets the standards and procedures. A schedule for severe injuries such as amputations is set forth. Other qualifying traumatic injuries result in the inability to carry out two of six defined ADL which are dressing, bathing, toileting, eating, continence, and transferring. TSGLI claims may be filed for loss of ADL if the claimant is completely dependent on someone else to perform two of the six ADL for 30days or more (15days or more in the case of traumatic brain injuries).
ADL loss must be certified by a healthcare provider in partB 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. While TSGLI claims will not be approved without a certification from a healthcare provider, additional documentation must be provided to substantiate the certification.

4. AppendixB (Glossary of Terms) of the TSGLI Procedures Guide, dated September 2008, provides the following:

a. Traumatic Event. The application of an external force, violence, chemical, biological, or radiological weapons, accidental ingestion of a contaminated substance, or exposure to elements that cause damage to a living body. Examples include:

* military motor vehicle accident
* military aircraft accident
* civilian motorcycle accident

b. Traumatic Injury. The physical damage to a living body that results from a traumatic event.

c. 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.

d. Injuries caused by one of the following are excluded from TSGLI payment:

* mental disorder
* mental or physical illness or disease, (not including illness or disease caused by a pyogenic infection, biological, chemical, or radiological weapon, or accidental ingestion of a contaminated substance)

DISCUSSION:

1. Notwithstanding that the applicant’s TSGLI claim was denied by HRC on three occasions and by this Board on two, the available medical evidence shows the applicant acquired a pyogenic infection, which, by definition, is not excluded from being considered a traumatic event.

2. Additionally, the U.S.District Court, Northern District Alabama, Northeastern Division, found the ABCMR’s denial of the applicant’s TSGLI claim to be arbitrary and capricious. The question as to the nature of the injury is no longer at issue. The applicant suffered the loss of ADL.

3. The court also pointed out that Title5 U.S.Code, section706(2), did not allow for ordering payment for damages. Therefore, the case was remanded to this Board to certify the applicant’s eligibility for TSGLI.

4. The applicant’s physician certified that he required assistance with the ADL of dressing and bathing for more than 30days.

5. The supporting medical documents show the applicant went home with a drain installed in his chest and required IV infusions of antibiotics that needed

professional home health aides from February to June 2010. Given these restrictions, assistance with bathing and dressing is understood.

//NOTHING FOLLOWS//
ABCMR Record of Proceedings AR20150000953

Enclosure 1

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

ABCMR Record of Proceedings (cont) AR20160004939

2

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 1

ABCMR Record of Proceedings (cont) AR20190004939

5

ARMY BOARD FOR CORRECTION OF MILITARY RECORDS

RECORD OF PROCEEDINGS

Enclosure 2