RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXX	CASE:  PD-2014-02420
BRANCH OF SERVICE:  Army	BOARD DATE:  20150210
SEPARATION DATE:  20080924

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E-4 (Signal Support System Specialist) medically separated for right knee pain and Diplegic cerebral palsy.  The conditions could not be adequately rehabilitated to meet the physical requirements of his Military Occupational Specialty.  He was issued a permanent P3L3 profile and referred for a Medical Evaluation Board (MEB).  The “chronic knee pain” and “cerebral palsy diplegic with spasticity” conditions were forwarded to the Physical Evaluation Board (PEB) IAW AR 40-501.  No other condition was submitted by the MEB.  The Informal PEB adjudicated “right knee pain” and “diplegic cerebral palsy” as unfitting, rated 10% and ---%, existed prior to service (EPTS), with likely application of the Veterans Affairs Schedule for Rating Disabilities (VASRD).  The CI made no appeals and was medically separated.

CI CONTENTION:  “Please consider all conditions.”

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44, Enclosure 3, paragraph 5.e.(2).  It is limited to those conditions determined by the PEB to be unfitting for continued military service and when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military/Naval Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is confined to review of medical records and all available evidence for application of the VASRD standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation. 

RATING COMPARISON:

IPEB – Dated 20080818	VA* - (~1 Mos. Post-Separation) 	
Condition	Code	Rating	Condition	Code	Rating	Exam	
Right Knee Pain	5099-5003	10%	Right Tibial Plateau Stress Fracture (Claimed As Right
Knee Pain Secondary To Chondromalacia Of Lateral
Femoral Condyle With Stress Fracture And Also Claimed As Fractured Right Knee)	5299-5260	0%	20081030	
Diplegic Cerebral Palsy	8199-8105	---%	Diplegic Cerebral Palsy	8199-8107	Not Service Connected	
Other x 0 (Not In Scope)	Other x 14	
RATING:  10%	RATING:  30%	
*Derived from VA Rating Decision (VARD) dated 20090721 (most proximate to date of separation (DOS)).
ANALYSIS SUMMARY:

Right Knee Pain:  At the MEB Medical examination, 2 months prior to separation, the CI reported that his right knee pain started in March 2008 during basic training after a 15K ruck march.  He twisted his knee on uneven terrain of gravel and clay.  He continued to have pain during physical activity, but worked through the pain and was able to finish basic training.  His pain continued despite conservative therapy.  There was no report of knee locking; however, the CI reported he had continued to experience the sensation of “giving way.”  His pain increased with prolonged standing, fast walking, and running; alleviating factors were not recorded.  Physical examination of the right knee recorded decreased range-of-motion (ROM) flexion to 110 (140) opined to have been secondary to pain only, and not limited by weakness, fatigue, lack of endurance or incoordination.  There was tenderness to palpation around the patella and no swelling, crepitus or signs of inflammation.  There was no evidence of knee instability (tests of ligamentous instability and meniscal injury were negative).  Magnetic resonance imaging in July 2008 revealed chondromalacia over the lateral femoral condyle and no other significant finding.  Bone scan of right knee in July 2008 reportedly demonstrated healing of right medial tibial plateau stress fracture.  At the VA Compensation and Pension (C&P) exam approximately 5 weeks after separation, the CI reported, that his right knee pain was on a daily basis with intensity of 5/10.  He indicated the absence of flare-ups.  His pain was made worse with climbing stairs and with carrying heavy bags of grocery.  His examination documented no lower extremity muscle atrophy, no assistive devices in use, a normal gait, no effusion, absence of tenderness in the right knee and the ability to heel and toe walk without difficulty.  Right knee ROM with flexion to 135 degrees, no laxity and negative anterior drawer sign.  ROM was not limited by weakness, fatigue, lack of endurance or incoordination.

The Board directed its attention to its rating recommendation based on the above evidence.  The PEB rated the right knee at 10% under 5099-5003 (degenerative arthritis without loss of joint motion) rated for limitation of one major joint.  A month after separation, the VA rated the knee at 0% for right tibial plateau stress fracture, coded analogously 5299-5260.  The Board noted the absence of any compensable ROM impairment under the specific knee codes, and no documented meniscal pathology warranting a rating under the 5259 code.  Rating under the 5258 code was not supported.  There were no additional coding options to consider.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change to the PEB adjudication of the right knee condition.

Diplegic Cerebral Palsy (Lower extremity):  The narrative summary noted that the CI was born with the condition of cerebral palsy, and underwent a bilateral heel cord transfer and lengthening on the right side in 1987 when he was 4-years old.  When he enlisted in the military, he was referred for an orthopedic evaluation and the orthopedist reportedly stated that his heel cord lengthening had good results and he had no limitations.  The CI noted he started having problems after joining the army.  On 30 June 2008, the CI was evaluated by neurology and reported his cerebral palsy only affected his lower extremity and he had problems completing the ruck march in basic training.  Neurological examination recorded decreased muscle bulk on right calf and slightly smaller muscle tone on right calf compared to left calf.  The neurologist noted spasticity in his bilateral lower extremities and limited ROM in his legs and a mildly spastic gait for walking, worse for running.  Physical examination recorded the findings of the neurologica, which included a spastic gait with normal stance, and normal tandem gait.  The VA C&P examination recorded “equal, normal musculature” in both thighs and legs.  The examiner noted that the CI was able to rise from a chair normally and walked with a normal gait without an obvious limp, scissoring or spasticity.

The Board directed attention to its rating recommendation based on the above evidence.  The PEB adjudicated the condition under the analogous code 8199-8105 (Sydenham’s chorea) for spastic gait, and determined that the condition EPTS, not permanently aggravated by service, and therefore, did not rate the condition.  Likewise, the VA under analogous code 8107 (rated as chorea) noted the condition EPTS and was not ratable.  The Board acknowledges that IAW 1332.38 a presumption of service aggravation may only be overcome by clear and unmistakable evidence that the natural progression of a pre-existing condition was unaltered by any consequence of military service.  The Board deliberated the issue of permanent service aggravation versus “service aggravation.”  The Board ensued on a discussion of the primary pathology.  The Board acknowledged that the condition is a mild form of cerebral palsy, a neurological condition, caused by injury at birth, and not susceptible to further worsening as the result of environmental conditions.  The Board surmised that given the nature of the condition, there is not sufficient evidence to support that the condition was service aggravated, or permanently service aggravated.  Therefore, the Board unanimously agreed that the evidence did not support a determination of permanent service aggravation.  After due deliberation in consideration of the preponderance of the evidence, the Board concluded that there was insufficient cause to recommend a change in the PEB determination that the cerebral palsy condition was EPTS and not service aggravated, and therefore this condition could not be recommended for disability rating.

BOARD FINDINGS:  IAW DoDI 6040.44, provisions of DoD or Military Department regulations or guidelines relied upon by the PEB will not be considered by the Board to the extent they were inconsistent with the VASRD in effect at the time of the adjudication.  The Board did not surmise from the record or PEB ruling in this case that any prerogatives outside the VASRD were exercised.  In the matter of the right knee pain condition and IAW VASRD §4.71a, the Board unanimously recommends no change in the PEB adjudication.  In the matter of the Diplegic cerebral palsy condition and IAW VASRD §4.124a, the Board unanimously recommends no change in the PEB adjudication.  There were no other conditions within the Board’s scope of review for consideration.

RECOMMENDATION:  The Board, therefore, recommends that there be no re-characterization of the CI’s disability and separation determination.

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20140521, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

XXXXXXXXXXXXXXX
President
DoD Physical Disability Board of Review

SAMR-RB									

MEMORANDUM FOR Commander, US Army Physical Disability Agency 
(AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557

SUBJECT:  Department of Defense Physical Disability Board of Review Recommendation for XXXXXXXXXXXXXXX, AR20150010607 (PD201402420)

I have reviewed the enclosed Department of Defense Physical Disability Board of Review (DoD PDBR) recommendation and record of proceedings pertaining to the subject individual.  Under the authority of Title 10, United States Code, section 1554a,   I accept the Board’s recommendation and hereby deny the individual’s application.  
This decision is final.  The individual concerned, counsel (if any), and any Members of Congress who have shown interest in this application have been notified of this decision by mail.

 BY ORDER OF THE SECRETARY OF THE ARMY:

Encl			     XXXXXXXXXXXXXXX
				     Deputy Assistant Secretary of the Army
				          (Review Boards)
						         
CF: 
(  ) DoD PDBR
(  ) DVA