Citation Nr: 1314650 Decision Date: 05/03/13 Archive Date: 05/15/13 DOCKET NO. 10-48 946 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Lincoln, Nebraska THE ISSUES 1. Entitlement to an effective date earlier than March 8, 2010 for increase to 10 percent rating for right knee chondromalacia status post arthroscopy. 2. Entitlement to a rating in excess of 10 percent for right knee chondromalacia status post arthroscopy (knee condition). REPRESENTATION Veteran represented by: AMVETS WITNESSES AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from October 1996 to April 1998. This appeal comes to the Board of Veterans' Appeals (Board) from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also her file on the "Virtual VA" system to ensure a total review of the evidence. FINDINGS OF FACT 1. In an August 1999 rating decision the Veteran was granted service connection for her right knee disability and a noncompensable rating was assigned. The Veteran did not file new evidence or a notice of disagreement within one year. 2. The evidence of record does not establish the Veteran is entitled to an effective date for a compensable rating for her service connected right knee condition earlier than March 8, 2010. 3. The Veteran's right knee exhibits a range of motion from 0-130 degrees, and the evidence does not establish that the knee disorder is productive of: ankylosis, slight recurrent subluxation or lateral instability, dislocated semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum. CONCLUSIONS OF LAW 1. The August 1999 rating decision which granted service connection and assigned a noncompensable rating for her right knee condition is final. 38 U.S.C.A. § 7105(c) (West 1999); 38 C.F.R. §§ 3.104, 20.302, 20.1103 (1999). 2. The criteria for an effective date prior to March 8, 2010, for the grant of a 10 percent rating for the right knee condition have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.105, 3.400, 20.1403 (2012); Rudd v. Nicholson, 20 Vet. App. 296 (2006). 3. Criteria for a rating in excess of 10 percent for right knee condition have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.27, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5259-5263 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In June 2010 the Veteran filed a notice of disagreement with the May 2010 rating decision appealing two issues. She first requested an earlier effective date for her rating, and second she requested a higher rating. The Board will address each of these appeals in turn. Earlier Effective Date The Veteran is seeking an earlier effective date for the grant of a compensable rating for her service connected right knee condition. The Veteran argues her compensable rating should date back to when she filed her initial claim for service connection in October 1998, because she alleges her initial claim was not properly processed and she did not receive any contact from the VA except for a single page stating her benefits were denied. In March 2011 the Veteran's husband submitted a written statement regarding the process of the Veteran's initial claim. He reported that she initially filed for benefits at the RO in Honolulu, Hawaii in 1998. He reported the Veteran did not receive any communication from the VA regarding this claim. Then in June of 1999 he was deployed and the Veteran moved back to Nebraska with her parents during his deployment. The Veteran's husband stated the Veteran left a forwarding address with the VA. She remained in Nebraska through October 1999. Her husband stated that during her time in Nebraska she received a one page letter stating she had been denied benefits from the VA. He stated neither he nor his wife were made aware of the VA appeals process until several years later, at which time she filed the current appeal. Finally, he stated that neither he nor the Veteran still had a copy of the one page document she received which indicated her benefits were denied. Review of the record establishes the Veteran filed her initial claim in October 1998. However, the record establishes the VA sent numerous letters to the Veteran in the course of her original appeal that were returned as undeliverable. This includes several letters before the Veteran alleged she moved from Hawaii in June 1999, including a letter dated April 1999 which detailed evidence the Veteran needed to submit in order to substantiate her claim under the standard in place at the time. Two additional letters were also sent before the Veteran moved in June 1999 which each requested an updated mailing address if the one used was incorrect. In addition, the RO scheduled the Veteran for a VA examination in June 1999 and sent a letter notifying her of the scheduled examination. However, this notice was also returned as undeliverable and the Veteran failed to report to her examination. Furthermore, the record establishes these letters were sent to the same address the Veteran provided on her October 1998 application for benefits. The record does not reflect the VA received any communication from the Veteran which provided an updated or forwarding mail address. The Court of Appeals for Veterans Claims (Court) has held that the presumption of regularity holds that government officials are presumed to have properly discharged their official duties, including processing any updated mailing address. In addition, this presumption of regularity also applies to the mailing of documents by the VA. The Veteran must rebut this presumption by clear evidence to the contrary. Baldwin v. West, 13 Vet. App. 1, 6 (1999); Mindenhall v. Brown, 7 Vet. App. 271, 274 (1994). The Veteran has not submitted any evidence that she submitted an updated mailing address to the VA, or that the VA otherwise used her wrong mailing address to send notice regarding her claim for benefits. As such, the Board finds the Veteran has not rebutted the presumption of regularity by clear evidence. Therefore, the Board finds the Veteran's initial claim for benefits was properly processed. The RO provided notice to the Veteran of what was needed to substantiate her claim, obtained her service treatment records, and scheduled her for a VA examination. When the Veteran failed to report to her scheduled examination the RO followed VA regulations and rated the claim based on the evidence of record. 38 C.F.R. § 3.655(b). The RO issued a rating decision in August 1999 which granted service connection with a noncompensable rating effective April 1998. The Veteran did not file a notice of disagreement or new evidence within one year, and the rating decision became final. 38 C.F.R. §§ 3.104, 20.302, 20.1103. In March 2010 the Veteran filed a new claim seeking an increased rating for her service connected right knee condition. The Veteran was granted a 10 percent rating effective March 2010. In June 2010 she filed a timely notice of disagreement asserting her compensable rating should date back to when she first filed her initial claim for service connection in 1998. She timely perfected her appeal to the Board. The general rule with regard to an award of increased compensation is that the effective date for such an award will be the date the claim was received or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1). An exception to this rule applies where the evidence demonstrates that a factually ascertainable increase in disability occurred during the one-year period preceding the date of receipt of the claim for increased compensation. Otherwise, the effective date remains the date the claim is received. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating and (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable." Hazan v. Gober, 10 Vet. App. 511 (1992). In this case the Veteran filed her current claim in March 2010. As such, the earliest effective date for her compensable rating is March 2009, if it is factually ascertainable that her increase in severity occurred in the year prior to filing her claim. As discussed above, the Veteran is seeking an effective date as early as October 1998. However, she has not alleged clear and unmistakable error (CUE) in the previous final decision so she is precluded by law from an effective date dating back to initial date of filing for service connection. See 38 C.F.R. §§ 3.105(a), 20.1403. As discussed above, she did not timely appeal the August 1999 rating decision which granted service connection and assigned a noncompensable rating, and that decision is now final. The Veteran cannot file a new claim seeking an earlier effective date than an award which has already become final. Such would be a "freestanding" effective date claim that would undermine the finality of previous decision, and for this reason is not allowed. Rudd v. Nicholson, 20 Vet. App. 296, 299 (2006). Therefore, in this case the Veteran is barred from seeking an effective date prior to March 2009, at the earliest. As such, only evidence related to the Veteran's right knee condition after March 2009 will be discussed. However, the earliest post-service medical records related to the Veteran's right knee contained in the record are from March 2010, the effective date currently assigned for her compensable rating. Therefore, the record does not contain evidence which relates to the Veteran's right knee condition earlier than the currently assigned effective date. As such, the Board finds the evidence of record does not establish the Veteran is entitled to an effective date for a compensable rating for her right knee condition earlier than March 2010. Therefore the Veteran's claim for an earlier effective date is denied. Increased Rating The Veteran is also requesting an increased rating for her service-connected right knee condition. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). It is also noted that staged ratings are appropriate for an increased rating claim whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is currently service connected for her right knee, and a 10 percent rating is assigned under 38 C.F.R. § 4.71a Diagnostic Code 5299-5260. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. In addition, codes ending in '99' are for all unlisted conditions. Here, the use of the Diagnostic Code 5299-5260 refers to a knee disability not specifically listed in the rating criteria which is rated analogous to a disability due to limitation flexion of the knee. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. Diagnostic Code 5260 provides ratings based on limited flexion of the leg. A noncompensable rating is assigned if flexion is limited to 60 degrees, a 10 percent rating is assigned when flexion is limited to 45 degrees, and 20 percent rating is assigned when flexion is limited to 30 degrees, and a maximum 30 percent rating is assigned if flexion is limited to 15 degrees. Diagnostic Code 5261 provides ratings based on limited extension of the leg. A noncompensable rating is assigned when extension is limited to 5 degrees, a 10 percent rating is assigned when extension is limited to 10 degrees, and 20 percent rating is assigned when extension is limited to 15 degrees, a 30 percent rating is assigned when extension is limited to 20 degrees, a 40 percent rating is assigned when extension is limited to 30 degrees, and a maximum 50 percent rating is assigned when extension is limited to 45 degrees. The RO found that the Veteran's range of motion in her knee would warrant a noncompensable rating under Diagnostic Code 5260. However, 38 C.F.R. § 4.59 states that the intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. As such, the RO, giving the Veteran the benefit of the doubt under 38 C.F.R. § 3.102, assigned the Veteran a 10 percent rating under Diagnostic Code 5299-5260 due to pain she experienced during range of motion in her right knee. The Board will now discuss whether the Veteran is entitled to a higher rating under 5299-5260, or any other applicable diagnostic code. All evidence of record has been reviewed, and relevant evidence is summarized below. In March 2010 the Veteran sought treatment from a private physician, Dr. Hamann, regarding her right knee pain. She reported her pain had gotten worse in the last couple of weeks. She said sometimes her knee clicked, popped, and swelled. She had been using ice and ibuprofen but lately that had not relieved her pain. The doctor noted the Veteran had discomfort below the patella. She noted clicking and popping on extension and flexion. Dr. Hamann gave the Veteran different pain medication and recommended ice, elevation, and an ace wrap. In addition, an x-ray was performed which revealed joint effusion but no fracture. The Veteran also sought treatment from Dr. Samani the same month. She reported right knee pain, mainly anterior, and worse with squatting, kneeling, climbing, crawling, and stair climbing. Veteran's range of motion was 0 to 120 degrees. X-rays showed mild bilateral tilt to both kneecaps and very minimal, if any, osteoarthritic change. Also in March 2010 the Veteran was provided with a VA examination. The Veteran reported her knee was sore and rated her pain at 6 out of 10. She reported flares of pain at 8 out of 10 with mechanical strain. She stated her knee would occasionally give out on her when going up stairs. She reported taking hydrocodone at night which provided "a little bit" of relief, as well as occasionally applying ice. The Veteran also reported she could not run or squat due to knee pain. She reported no loss of time at work due to her knee condition and no impact on her occupation. The examiner found she was able to walk 1/4 of a mile and had no limitations on standing. Upon examination the examiner noted no clicks or snaps, grinding, or instability. However, subpatellar tenderness was noted. Range of motion was flexion from 0 to 120 degrees and normal extension to 0 degrees. The examiner noted there was objective evidence of pain following repetitive motion, but no additional limitation of motion after three repetitions of range of motion. The examiner opined the Veteran had right knee chondromalacia patella, status post arthroscopy. She noted no significant effects on the Veteran's usual occupation. However, the examiner did note the following effects on the Veteran's usual daily activities: mild impairment of chores, exercise, sports, and recreation. Additionally in March 2010 the Veteran and her husband each submitted a written statement regarding her right knee pain and the limitations it caused. The Veteran's husband stated her knee pain had gotten progressively work, and he had to take over chores she used to do alone. He also reported she didn't carry anything while climbing stairs because her knee would occasionally give out, causing her to fall. He also reported that lately her knee had swelled to a larger size. The Veteran reported she treated her pain with ice and Tylenol, thought lately these had not helped. She also asserted her most recent VA examination was not thorough and lasted only 10 minutes. The Board notes that as lay persons, the Veteran and her husband are considered to be competent to report what comes to them through their senses, such as the Veteran's pain in her right knee and visible swelling. Layno v. Brown, 6 Vet. App. 465 (1994). However, both the Veteran and her husband lack the medical training and expertise to provide a complex medical opinion as to the etiology and severity of her current right knee condition. See Layno v. Brown, 6 Vet. App. 465 (1994), Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). As such, the Board will consider the statements from the Veteran and her husband in conjunction with the medical evidence of record. In April 2010 the Veteran returned to Dr. Samani for her knee pain. A MRI of Veteran's knee was performed and revealed small fissure that went through the entire thickness of the lateral patellar cartilage with no flap or focal defect. Also noted was subchondral edema in the subchondral bone of the femur near the midline. Additionally, markedly large joint effusion was noted. The patella appears slightly laterally displaced and patellofemoral tracking abnormality may have been present. The doctor recommended the Veteran go to physical therapy and follow up in a month. Later that month the Veteran began physical therapy for her right knee. The Veteran reported her history consistent with the record and stated her pain was currently 3-4 out of 10. Her range of motion was within normal limits, and quad strength was good, although she did experience discomfort. Straight leg raising for flexion showed muscle strength 4+ out of 5, abduction was 3+ out of 5, and extension was 3+ out of 5. The Veteran established three goals for her treatment: 1) facilitate independence with home exercise program, 2) Reduce pain level 50%, and 3) Have strength at 5/5 throughout particularly with hip abduction and extension and external rotation. Throughout May 2010 the Veteran attended physical therapy twice a week for her right knee pain. She reported improved condition, and her physical therapist continued to provide more challenging exercises. By the end of the month she indicated no pain and only occasional weakness in her leg. Her range of motion was within normal limits, and girth measurements were normal, suggesting no atrophy. The physical therapist noted the Veteran had tolerated her treatment well and achieved the goals set out in her initial evaluation. She was advised to continue with her home exercise program independently. In July 2010 the Veteran was provided with a VA examination for her right hip condition (which is not currently on appeal before the Board). The examiner found the Veteran's right knee condition was significant enough to have altered her normal body mechanics such as to place undue strain on the right hip sufficient to cause joint dysfunction. She was granted service connection for her right hip secondary to her service connected right knee condition. In September 2010 the Veteran reported to a VA facility for treatment regarding her right knee condition. The Veteran indicated she was not interested in performing an additional knee scope at this time. She requested a hyalgen injection, but it was not covered by her insurance and was not performed. The VA noted the Veteran had chronic right knee pain. That same month, September 2010, she returned to Dr. Samani for follow-up of her right knee. She reported she had been doing more squatting and kneeling and it caused increased pain. She reported physical therapy helped for awhile, but her pain has become worse again due to increased activity required by her newborn. Upon examination positive Clark sign with crepitus was present underneath the patella. Otherwise her range of motion was normal. Dr. Samani's office placed her in a J-brace. In October 2010 the Veteran returned to Dr. Samani for her first injection of Synvisc. The Veteran tolerated the procedure well. The following week she returned for her second injection. She reported some relief following her first injection. The following week the Veteran received her third and final injection. Veteran's range of motion was normal and she had negative McMurray, anterior drawer, and Lachman signs. The doctor also noted no swelling and that the knee was nontender upon palpation. She did still have some crepitus present with patella tracking. In November 2010 the Veteran returned to Dr. Samani for follow-up after her Synvisc injections. She reported she still had occasional pain at the end of the day, but the injections worked well for her, improved her condition, and she was happy with the results. The physician gave her glucosamine chondroitin to begin once she stopped breastfeeding. In March 2011 the Veteran was able to testify at a hearing before the RO decision review officer. The Veteran testified she did not communicate when pain began during her range of motion in her previous examination, because she did not realize it would be the basis of her rating. She explained she could not lift more than a 10 pound object off the floor due to her knee condition. She reported she just began a new round of Synvisc shots, which provided temporary relief. She explained the injections provided some fluid padding where her cartilage was gone, so it helped prevent bone-on-bone grinding. She estimated the relief lasted approximately four months. The Veteran also reported some days her knee hurt to such a degree she had to ask her husband to come home from work early to continue to watch the children. Additionally, she reported her pain made it difficult to her to sleep, and she averaged only four to four and half hours of sleep per night. She also stated she wore a knee brace most of the time, and her knee popped and clicked every time she bent it. That same month, the Veteran also provided a written list of the adverse symptoms due to her knee condition. She reported difficulties with long trips to the grocery store, mall shopping, picking up the kids from the floor, standing up unassisted, using stairs unassisted, bathing children, cleaning on her knees, running, walking for more than 15 min, standing for long periods, sitting for long periods, and sleeping. She reported daily use of hydrocodone for pain. She also reported she couldn't control inflammation in her knee due to NSAID allergy. Finally, she stated she was offered surgery but declined until her children were older. In April 2011 the Veteran was provided with an additional VA examination of her right knee. The Veteran's history was noted consistent with the record. She reported she was self-employed at a daycare center out of her house. The examiner noted pain and stiffness in the Veteran's right knee, but did not indicate giving way, instability, weakness, or effusion. The Veteran reported she had weekly flare-ups of moderate severity which lasted hours at a time. She stated she was able to stand more than one but less than three hours, and was unable to walk more than a few yards. She reported she always wore her patellar alignment knee brace. The examiner noted her gait was antalgic, but there was no loss of bone. Range of motion was flexion from 0 to 133 degrees, with pain beginning at 130 degrees, and normal extension to 0 degrees. The examiner noted objective evidence of pain following repetitive motion, but did not find additional limitations after three repetitions of range of motion testing. The examiner also noted the Veteran's right knee condition cause mild impairment on chores, traveling, and driving; moderate impairment in shopping and recreation; severe impairment in exercise; and prevented her from participating in sports. Based on the foregoing, the Board notes the Veteran consistently displayed range of motion in her knee from zero to 130 degrees. As noted above, normal range of motion is zero to 140 degrees flexion. As such, the Board finds the Veteran has nearly normal range of motion in her right knee, and is therefore not entitled to a rating in excess of 10 percent under Diagnostic Codes 5260 or 5261 relating to range of motion. The Board will now turn to a discussion of the other Diagnostic Codes related to the knee. Diagnostic Code 5256, which evaluates ankylosis of the knee, assigns a 30 percent rating for favorable ankylosis in full extension, or in slight flexion between 0 degrees and 10 degrees. A 40 percent rating is assigned when there is ankylosis of the knee in flexion between 10 and 20 degrees. 38 C.F.R. § 4.71a, Diagnostic Code 5256. However, there has been no suggestion that there is any ankylosis in the Veteran's right knee. At the most recent VA examination, in April 2011, the examiner specifically found no joint ankylosis. As such, the Board finds this Diagnostic Code is not applicable. Diagnostic Code 5257 evaluates recurrent subluxation or lateral instability of a knee, and assigns a 10 percent disabling for a slight impairment, 20 percent disabling for a moderate impairment, and 30 percent disabling for a severe impairment. Diagnostic Code 5257 is not predicated on loss of range of motion. See Johnson v. Brown, 9 Vet. App. 7, 11 (1996). The words "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. The Veteran has not specifically complained of instability in her knee, but she has reported on several occasions that her knee will occasionally 'give out' on her, proving lay evidence of knee instability. The Board has considered the Veteran's lay statements; however review of the record finds these lay statements are not supported by objective medical evidence of record. In both VA examinations of the Veteran's knee, in March 2010 and April 2011, the examiners specifically noted there was no instability of her right knee. Therefore, although the Veteran has provided lay testimony suggesting she experienced instability of her right knee, her statements are not supported by the objective evidence of record. As such, the Board finds a rating under Diagnostic Code 5257 is not warranted. Under Diagnostic Code 5258, a 20 percent rating is assigned when semilunar cartilage is dislocated with frequent episodes of locking, pain and effusion into the joint. 38 C.F.R. § 4.71a, Diagnostic Code 5258. However, the evidence of record does not establish the Veteran had dislocation of semilunar cartilage. The Board notes that joint effusion was indicated in March 2010 x-ray report and April 2010 MRI report of the Veteran's right knee. However, effusion, or swelling of her knee joint, was not again noted throughout the course of the appeal. Instead, in both VA examinations of the Veteran's right knee, in March 2010 and April 2011, the examiners specifically noted there was no effusion of the Veteran's right knee. As such, the Board finds that whatever effusion the Veteran experienced in March and April 2010 resolved. In addition, the evidence of record does not establish the temporary effusion was due to dislocated semilunar cartilage. As such, the Board finds a rating under this Diagnostic Code is not warranted. In addition, Diagnostic Code 5259 provides a 10 percent rating is assigned when symptomatic semilunar cartilage is removed. However, the record does not reflect the Veteran had a procedure to remove this semilunar cartilage. As such, this Diagnostic Code is not applicable. Diagnostic Code 5262 provides ratings related to impairment of the tibia and fibula, including nonunion or malunion. However, review of the record does not suggest the Veteran experienced an impairment of the tibia or fibula. As such, this Diagnostic Code is not applicable. Finally, Diagnostic Code 5263 provides a 10 percent rating when the Veteran has genu recurvatum (a deformity of the knee joint which causes it to bend backwards) whether acquired or traumatic, with weakness and insecurity in weight-bearing objectively demonstrated. The evidence of record does not suggest the Veteran experienced hyperextension of her knee during the period on appeal, and therefore a rating under this Diagnostic Code is not warranted. Based on the foregoing the Board finds the Veteran is not entitled to a rating in excess of 10 percent for her right knee condition. In reaching this conclusion, the Board has considered whether a higher disability evaluation is warranted on the basis of functional loss due to pain or due to weakness, fatigability, incoordination, or pain on movement of a joint under 38 C.F.R. §§ 4.40 and 4.45. See also DeLuca v. Brown, 8 Vet. App. 202 (1995). Functional loss contemplates the inability of the body to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance, and must be manifested by adequate evidence of disabling pathology, especially when it is due to pain. 38 C.F.R. § 4.40. Additionally, painful motion is an important factor of disability; and joints that are actually painful, unstable, or malaligned, due to healed injury, should be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. In both of the examinations related to the Veteran's right knee condition, in March 2010 and April 2011, the examiners performed repetitive use testing on the Veteran. In each examination the examiner noted that there was objective evidence of pain following repetitive motion, but no additional limitation of motion. The Board notes that although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Therefore, because both examiners specifically noted the Veteran did not experience additional limitations after repetitive use testing, the Board finds a higher rating is not warranted under the DeLuca considerations. The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a veteran is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the veteran's disability level and symptomatology, a determination must be made whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. In this case, the Board finds that the schedular rating criteria reasonably describes the Veteran's symptomatology and disability level. The Veteran's primary complaint has been that of pain. The Board finds that the Veteran's pain has already been specifically contemplated by the rating criteria, the regulations regarding painful motion at 38 C.F.R. § 4.59, and the DeLuca factors. As such, the Board finds that the Veteran's disability picture is not exceptional, and an extraschedular consideration is not required. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. The Board notes that the Veteran is currently self-employed as the owner and operator of a child daycare center out of her house. Thus, the Board finds that Rice is inapplicable since there is no evidence of unemployability due to the Veteran's service connected right knee condition. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the veteran about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a veteran of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In the present case, required notice was provided by a letter dated in March 2010, which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. The letter also informed the Veteran how disability ratings and effective dates were established. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied as to both timing and content. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). VA and private treatment records have been obtained, as have service treatment records. Additionally, the Veteran was able to testify before the decision review officer at the RO in March 2011. The Veteran was also scheduled for a hearing before the Board in August 2012, however she failed to report to her scheduled hearing. A record of a phone call with the Veteran that same month suggested she no longer wanted a hearing before the Board, although she did not formally withdraw her hearing request. However, VA regulations provide that if the Veteran fails to appear for a scheduled hearing then the case will proceed as though the request for hearing had been withdrawn. 38 C.F.R. § 20.705. The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file). In her June 2010 written notice of disagreement the Veteran asserted her March 2010 hearing was "minimal at best." She reported the examination was brief and the examiner did not touch her leg to examine her knee. The Board has reviewed the report of the March 2010 examination and found it to be complete. The examiner personally interviewed the Veteran and examined her knee, including performing range of motion testing. As such, the Board finds this examination provided all the information necessary to evaluate her disability. However, the Veteran was also provided with an additional VA examination in April 2011. The Board finds this examination was also thorough and adequate, and provided a sound basis upon which to base a decision with regard to the Veteran's claim. This examiner also personally interviewed and examined the Veteran, including performing range of motion testing. In addition, the Board notes neither the Veteran nor her representative have mentioned any concerns regarding this most recent VA examination. As discussed, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER The Veteran's claim for an effective date earlier than March 8, 2010 for a compensable rating for her service connected right knee condition is denied. The Veteran's claim for a rating in excess of 10 percent for her service connected right knee condition is denied. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs