Citation Nr: 1317155 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 06-24 577 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a rating in excess of 20 percent for instability of the left knee due to anterior cruciate ligament deficiency, to include an initial rating in excess of 10 percent prior to May 28, 2009. 2. Entitlement to a rating in excess of 10 percent for arthritis of the left knee effective February 7, 2011. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and her representative ATTORNEY FOR THE BOARD Andrea Johnson, Associate Counsel INTRODUCTION The Veteran had active military service from September 1999 through September 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal of a December 2004 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that continued a 10 percent rating for the service-connected left knee disability. A subsequent rating decision dated February 2011 granted a 20 percent rating for this disability, effective May 28, 2009. A later rating decision dated September 2012 granted an additional 10 percent rating for osteoarthritis of the left knee effective February 7, 2011. As such, the Veteran's total left knee disability rating is 30 percent effective February 7, 2011. As this does not represent a total grant of benefits sought on appeal, the claim for increase remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In November 2010 the Veteran testified before a Veterans Law Judge (VLJ) who has since retired. As VA regulations require that the VLJ who conducted the hearing must participate in any decision made on appeal, the Veteran was offered a new hearing before a new VLJ in a February 2013 letter. The letter noted that if no response was received within 30 days the Board would assume the Veteran did not want another hearing and proceed accordingly. The Veteran did not respond to the hearing clarification letter, and as such the Board will continue to adjudicate this appeal. The Board has previously remanded this matter for further development in June 2010, January 2011, and July 2011. Review of the record reveals the requested development has been completed, a finding also reached by the Veteran's representative in his September 2012 written brief. As such, the Board finds there is no prejudice to the Veteran, and the Board may proceed with adjudication. See Stegall v. West, 11 Vet. App. 268 (1998). 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. The weight of the evidence does not establish the Veteran experienced severe instability of the left knee due to an anterior cruciate ligament deficiency at any point during the period on appeal, and does not establish she experienced moderate instability before May 28, 2009. 2. The weight of the evidence establishes the Veteran had degenerative arthritis with noncompensable range of motion in the left knee from April 3, 2007 through April 8, 2009 and February 7, 2011 and continuing. 3. The weight of the evidence establishes the Veteran experienced extension limited to 15 degrees in her left knee from April 9, 2009 until May 13, 2009 and extension limited to 10 degrees in her left knee from May 14, 2009 to February 18, 2011, inclusive. CONCLUSIONS OF LAW 1. Criteria for a rating rating in excess of 20 percent for instability of the left knee due to an anterior cruciate ligament deficiency, to include an initial rating in excess of 10 percent prior to May 28, 2009 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, 4.71a, Diagnostic Code (DC) 5259-5263 (2012). 2. The criteria for a rating of 10 percent for arthritis of the left knee were met from April 3, 2007 through April 8, 2009. 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, 4.71a, Diagnostic Code (DC) 5003-5260 (2012). 3. The criteria for a temporary staged rating for limitation of extension of the left knee not to exceed 20 percent from April 9, 2009 through May 13, 2009 and 10 percent from May 14, 2009 through February 18, 2011, inclusive, have 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, 4.71a, Diagnostic Code (DC) 5261 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran is requesting an increased rating for her service-connected left 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 Veteran filed her initial claim for service connection for her left knee condition in June 2003. In a September 2003 rating decision the RO granted service connection and assigned a 10 percent rating. However, less than a year later, before the rating decision became final, the Veteran filed the current claim as well as new evidence. As such, her initial determination never became final and remains on appeal. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where, as here, the question for consideration is propriety of the initial evaluations assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran is currently service connected for her left knee and a 30 percent rating is assigned, including a 20 percent rating under 38 C.F.R. § 4.71a Diagnostic Code 5259-5257 and a 10 percent rating under Diagnostic Code 5260-5003. 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. The RO indicated the 20 percent rating under Diagnostic Code 5259-5257 was based on "pain and instability and symptomatic removal of the cartilage" and "recurrent subluxation or lateral instability of the knee that [was] moderate." A 10 percent rating was assigned under Diagnostic Code 5259-5257 for the presence of degenerative arthritis in the knee which would merit a noncompensable rating due to limitation of motion. VA's Office of General Counsel has determined that a Veteran may receive separate disability ratings for limitation of motion, under Code 5260, and for instability of the knee, under Code 5257, since these Codes pertain to different symptoms. See VAOPGCPREC 23-97 (July 1, 1997), 62 Fed. Reg. 63, 604 (1997); and VAOPGCPREC 9-98 (August 14, 1998), 63 Fed. Reg. 56, 704 (1998). VA's Office of General Counsel has also held that the Veteran may receive separate ratings for limitation of flexion and extension for the same joint. VAOPGCPREC 9-2004 (September 17, 2004), 69 Fed. Reg. 59, 990 (2004). Diagnostic Codes 5256 through 5263 relate to the knee and leg. The Veteran is currently assigned a 20 percent rating under Diagnostic Code 5257 for instability of her left knee resulting from anterior cruiciate ligament deficiency, effective May 2009. She is also assigned a separate 10 percent rating under Diagnostic Code 5003-5360 for osteoarthritis of the left knee, effective February 2011. Diagnostic Code 5257 evaluates recurrent subluxation or lateral instability of a knee, and assigns a 10 percent rating for a slight impairment, 20 percent rating for a moderate impairment, and 30 percent rating 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. VA regulations also provide 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. Other diagnostic codes also relate to the knee, including Diagnostic Code 5256 which evaluates ankylosis of the knee, Diagnostic Code 5258 which evaluates semilunar cartilage dislocation, Diagnostic Code 5262 which evaluates impairment of the tibia and fibula, and Diagnostic Code 5263 which evaluates genu recurvatum. However, as will be discussed below, the evidence of record does not establish the Veteran experienced any of these conditions in her left knee, and as such these codes are not applicable. The evidence of record has been reviewed and considered, and relevant evidence is summarized below. Applicable diagnostic codes will also be addressed. Service treatment records establish the Veteran injured her left knee during military service. In June 2003 she was provided with a separation examination. This military examiner noted history of pain and instability, especially when going up or down stairs or hills. The examiner noted no swelling or effusion. Range of motion testing was conducted and revealed the Veteran had flexion to 135 degrees bilaterally and extension from 0 degrees to 50 degrees bilaterally. Lachman's test and pivot shift test were both positive, suggesting injury to the anterior cruciate ligament (ACL). X-ray revealed normal leg. The examiner opined the Veteran had ACL deficiency and degeneration of post medial meniscus in the left knee. Complete tear of the ACL in the left knee was noted. In August 2004 the Veteran established care with a VA facility. She reported pain and swelling in her left knee, especially when climbing stairs. Examination revealed the Veteran had full range of motion with no pain, and no weakness or muscle atrophy. The Veteran also walked with a normal gait and no misalignment was noted. In October 2004 the Veteran was provided with a VA examination. The examiner noted the Veteran's history consistent with the record. The examiner also noted the Veteran had been provided with a brace by the treating VA facility. The Veteran reported dull aching pain in her left knee, especially when driving her manual transmission car. She reported experiencing occasional popping in her left knee, but no history of frank instability, locking, or swelling. The examiner noted the Veteran walked with a normal gait without limping, and no swelling or effusion of the left knee was present. The examiner also noted the Veteran had full range of motion in the left knee without any evidence of crepitation. X-rays were also essentially normal, and did not reveal any evidence of arthritic changes. The examiner opined the Veteran had anterior cruciate ligament deficient in her left knee. The Board finds the results of this VA examination establish a rating in excess of 10 percent for her left knee condition was not warranted at this time. The Veteran demonstrated the symptoms of slight instability of the knee, including positive Lachman's and pivot shift testing, as well as the Veteran's own reports of a feeling of instability. However, the Board finds the evidence does not establish the Veteran was experiencing moderate instability impairment at this time. The examiner noted no history of frank instability, and the Veteran did not report additional giving way of her knee other than one occurrence in November 2002. As such, the Board finds a 10 percent rating under Diagnostic Code 5257 was warranted at this time. The Board also finds the Veteran did not exhibit symptoms of ratings under other diagnostic codes related to the knee. For example, no ankylosis was noted, the Veteran had full range of motion, no effusion was noted, and the x-ray did not reveal any arthritis. As such, the Board finds the Veteran was not entitled to an additional rating under any other Diagnostic Code related to the knee at this time. In March 2005 a MRI was taken of the Veteran's left knee. The MRI revealed a chronic tear of the ACL. The interpreting physician also noted no evidence of meniscal tear. The record reflects that in March 2005 the Veteran was discharged from the reserves due to her ACL tear. In October 2005 the Veteran submitted a written notice of disagreement to the VA. She reported that although she doesn't limp every day, her severe pain does cause her to limp. She reported her pain increased with prolonged sitting or standing, and was relieved by elevation and massage. She reported difficulties driving her manual shift car since her knee would lock up from time to time. She also reported her knee pain limited her career choices, for example preventing her from working for the FBI due to their physical requirements, and preventing her participation in extracurricular activities, such as running marathons. She also reported a constant fear and concern that she would further injure her knee. In April 2006 the Veteran had an orthopedic follow-up appointment at the VA. She reported pain in the medial aspect of her left knee. The physician opined she had findings of medial collateral ligament syndrome. However he noted she declined additional treatment. In July 2006 she filed a written substantive appeal. She reported her knee continued to be aggravated on a daily basis. She described that her knee locked and would swell, though not to the size of a balloon. She stated she limped, more on some days than others. She also reported she could not bend her knees in the same way as before the injury. The Board notes that as a lay person, the Veteran is considered competent to report what comes to her through her senses, such as pain in her knee and feeling of locking up. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Veteran lacks the medical training and expertise to provide a complex medical opinion regarding the severity of her current left 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 lay statements from the Veteran in conjunction with the medical evidence of record. The Veteran was provided with an additional VA examination in November 2006. The examiner was not able to review the Veteran's claims file, but included a summary of the Veteran's history which revealed familiarity with her medical and military history. The Veteran complained of pain and a sensation of giving way or buckling that occurred at unexpected times. The Veteran reported her pain was a 5 out of 10, but became a 7 with flare-ups. She reported these flare-ups occurred daily and were relieved by rest and elevation for 30 minutes to an hour. The Veteran was not currently taking any medication for her pain. She also reported a burning sensation in the left knee. The Veteran stated she had a derotational brace that she used occasionally, but reported it was too bulky to wear at work. Physical examination did not reveal effusion or symptoms of muscle atrophy. The Veteran's range of motion was flexion from 0 to 130 degrees with pain. Repetitive motion testing was conducted and revealed increased pain, fatigue, weakness, and lack of endurance, but did not result in any additional decrease in range of motion. Pivot shift sign and Lachman's test were positive, suggesting damage to the ACL. The examiner opined the Veteran had residuals from ruptured ACL in her left knee. The Board finds the evidence from this examination does not reflect the Veteran's knee condition had deteriorated since her previous examination. She continued to have nearly full range of motion in her left knee and still exhibited slight instability due to damage to her ACL. As such, the Board finds a 10 percent rating continued to be warranted at this time. In February 2007 the Veteran established treatment with a private physician for her left knee pain. He reported her history consistent with the record. The Veteran described pain in her medial joint line of her left knee. She reported no locking, but she did occasionally experience a catching sensation. Examination revealed no varus or valgus instability, but her Lachman test was positive. X-ray showed some degenerative changes around the medial line, but no fracture or loose bodies. The physician reviewed the May 2003 MRI and opined degenerative changes about the medial compartment with questionable degenerative tear of the posterior horn of the medial meniscus, as well as ACL tear. The physician assessed the Veteran had posttraumatic arthritis in her left knee, but ruled out degenerative medial meniscal tear. In April 2007 the Veteran returned to her private physician for her left knee pain. The Veteran again demonstrated full range of motion in her left knee with positive Lachman and pivot shift tests. The physician noted no varus or valgus instability. MRI was reviewed which showed degenerative changes predominantly medially. The physician opined the Veteran had posttraumatic arthritis in her left knee and ACL instability. He opined the Veteran did not have occult medial meniscal tear. As such, the Board finds the April 2007 MRI established the Veteran had degenerative arthritis due to trauma. Diagnostic Code 5010 provides that arthritis due to trauma shall be rated as degenerative arthritis. 38 C.F.R. § 4.71a. Diagnostic Code 5003 provides that degenerative arthritis established by x-ray findings will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint involved. When however, the limitation of motion of the specific joint involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent for each major joint involved is applicable. Id. Here, the evidence reflects the Veteran continued to have nearly full range of motion in her left knee, which would not correlate to a compensable rating under the appropriate diagnostic codes. As such, the Board finds a 10 percent rating for degenerative arthritis in the Veteran's left knee is warranted as of the April 2007 MRI. 38 C.F.R. § 4.71a Diagnostic Code 5003-5260. The record reflects that in January 2009 the Veteran had an additional injury to her left knee. In her May 2009 written statement she described the event. She was on a flight and bent down to sit in her airplane seat when her left knee gave out. After landing in North Carolina she went to the emergency room and had x-rays done. The Veteran was diagnosed with a knee sprain and provided with an immobilizer brace, as well as given pain medication. The Veteran was instructed she could return to work without restrictions. Then in February 2009 the Veteran went to the emergency room with chest pains and was diagnosed with a pulmonary embolism due to a blood clot. The private physician noted the Veteran had three factors for the presence of the blood clot, her left knee injury, history of flight the previous month, and use of oral contraceptives. Later that month an additional MRI was taken of the Veteran's left knee. This scan revealed abnormal appearance of ACL consistent with chronic near complete tear. The physician additionally noted indications of probable displaced fragment from the medial meniscus. However, the physician opined no acute bony injury. In April 2009 the Veteran returned to her private physician. The physician noted her history consistent with the record. Range of motion showed 15 percent flexion contracture. The physician noted the Veteran could flex to maybe 60 degrees. Pain was noted at the extremes. The Veteran did not tolerate pivot shift or McMurray testing, but Lachman test was positive. The physician also noted mild-to-moderate swelling in her left leg. MRI showed bucket-handle tear of the medial meniscus with chronic ACL tear. The physician opined her bucket-handle tear in the left medial meniscus had a locked meniscus fragment which prevented motion. The physician opined she was at risk for prolonged disability due to the length of time, over two months, her meniscus had been in a locked position. As such, he recommended arthroscopic partial meniscectomy procedure. As such, the evidence of record indicates the Veteran's knee condition had worsened at this time. The April 2009 treatment note reveals the Veteran exhibited limited range of motion in her left knee for the first time during the period on appeal. Her physician indicated her flexion was limited to 60 degrees. As discussed above, Diagnostic Code 5260 relates to limited flexion of the knee. This Code, however, only assigns a noncompensable rating for flexion limited to 60 degrees. As such, the evidence established the Veteran was entitled to a noncompensable rating under Diagnostic Code 5260 at this time. 38 C.F.R. § 4.71a. The physician also noted the Veteran's flexion contracture, or extension, was limited to 15 percent. As discussed above, Diagnostic Code 5261 relates to limited extension of the knee. Under this Code, extension limited to 15 degrees merits a rating of 20 percent. Id. As such, the Board finds the Veteran was entitled to a 20 percent rating under Diagnostic Code 5261 at this time. The Veteran also continued to be entitled to her 10 percent rating under Diagnostic Code 5257 for slight instability of her knee. However, the Veteran no longer warrants a separate 10 percent rating under Diagnostic Code 5003-5260 for posttraumatic degenerative arthritis with noncompensable limitation of motion as she warranted a rating based on limitation of motion at this time. Later in April 2009 the Veteran's physician performed an operative procedure on her left knee. The pre- and post- operative diagnoses were the same: 1) Locked bucket-handle tear of the medial meniscus, left knee, 2) Chronic ACL tear, 3) Left knee stiffness secondary to locked bucket-handle tear of the medial meniscus. The physician performed arthroscopic partial medial meniscectomy, ACL debridement, and chondroplasty of the medial femoral condyle of her left knee. The Veteran returned to her private physician in May 2009. The physician noted tense knee effusion. Testing revealed she could extend her knee to 15 degrees and flex to 55 degrees with pain. The physician aspirated her left knee and obtained approximately 80cc of old, thick blood. The physician assessed the Veteran had hemarthrosis of the left knee, status post arthroscopic partial medial meniscectomy, chondroplasty, and ACL debridement. The physician recommended the Veteran attend physical therapy and refilled her pain medication. Later that month the Veteran returned. The physician noted she had worked hard in physical therapy. The Veteran lacked 10 degrees of full extension, and had flexion down to about 90 degrees with pain. The physician's assessment remained the same. As such, the evidence establishes the Veteran's condition improved in May 2009 following her knee procedure. The Veteran could now extend her knee to 10 degrees. Under Diagnostic Code 5261 extension limited to 10 degrees warrants a rating of 10 percent. Therefore the Veteran's 20 percent rating under Diagnostic Code 5261 is no longer appropriate in May 2009, and instead a 10 percent rating under this code is warranted at this time. 38 C.F.R. § 4.71a. The RO also granted the Veteran an increased rating to 20 percent under Diagnostic Code 5257 due to moderate instability of her knee at this time. The Board notes Lachman test from April 2009 was +1, suggesting mild instability. Therefore, the Board finds the evidence establishes the Veteran was experiencing instability at this time, but does not establish her instability was severe. As such a higher 30 percent rating is not warranted under this code. The Veteran was provided with an additional VA examination in February 2011. The examiner reviewed the Veteran's claims file as well as personally interviewed and examined her. The examiner noted the Veteran had pain and stiffness in her left knee, but no giving way or instability. He also noted repeated effusions. He indicated the Veteran was able to stand for 15 to 30 minutes and able to walk for 1/4 of a mile. He noted the Veteran walked with a normal gait with no evidence of abnormal weight bearing. Range of motion testing revealed flexion from 0 to 120 degrees and normal extension with no objective evidence of pain with active motion. The examiner noted no ankylosis. The examiner opined the Veteran had degenerative joint disease, near complete ACL tear, and status post left knee surgery in her left knee. The examiner noted her condition had no significant effects on her usual occupation as an accountant. However her knee condition had the following effects on her usual daily activities: mild impairment of toileting; moderate impairment of driving, traveling, recreation, shopping, and chores; severe impairment of exercise; and prevented sports. In August 2011 the examiner provided a clarifying addendum to his opinion. He noted the Veteran did have osteoarthritis of her left knee which was caused by her service connected left knee condition. The examiner also noted there was no loss of range of motion upon repetitive movements. As such, the range of motion testing from the February 2011 revealed the Veteran's left knee condition had continued to improve and she now had nearly full range of motion in her knee. As such, the evidence does not establish the Veteran continued to warrant a compensable rating under Diagnostic Code 5260 or 5261 at this time. 38 C.F.R. § 4.71a. However, the evidence establishes the Veteran continued to have degenerative arthritis in her left knee. As discussed above, due to the presence of degenerative arthritis without limitation of motion on her left knee, she is again entitled to a 10 percent rating under Diagnostic Code 5003-5260 at this time. Id. Based on all of the foregoing, the Board finds the evidence of record establishes the Veteran is entitled to an earlier effective date for the arthritis in her left knee, as well as a limited staged rating for temporary impairment of extension. The Board's determination is summarized in the bullet points below: * Before April 3, 2007 the Veteran is entitled to - 10 percent rating for instability under Diagnostic Code 5257. [this was the rating assigned by the RO] * Between April 3, 2007 and April 8, 2009 the Veteran is entitled to -10 percent rating for instability under Diagnostic Code 5257 -10 percent rating for arthritis with noncompensable limitation of motion under Diagnostic Code 5003-5260 [the additional 10 percent rating for arthritis with noncompensable limitation of motion represents a grant of increased benefits.] * Between April 9, 2009 and May 13, 2009 -10 percent rating for instability under Diagnostic Code 5257 -20 percent rating for limited extension under Diagnostic Code 5261 -noncompensable rating for arthritis under Diagnostic Code 5003-5260 [the additional 20 percent rating for arthritis with limited extension represents a grant of increased benefits.] * Between May 14, 2009 and May 27, 2009 -10 percent rating for instability under Diagnostic Code 5257 -10 percent rating for limitation of extension under Diagnostic Code 5261 - noncompensable rating for arthritis under Diagnostic Code 5003-5260 [the additional 10 percent rating for arthritis with limited extension represents a grant of increased benefits.] * Between May 28, 2009 and February 18, 2011 -20 percent rating for instability under Diagnostic Code 5257 -10 percent rating for limitation of extension under Diagnostic Code 5261 - noncompensable rating for arthritis under Diagnostic Code 5003-5260 [the additional 10 percent rating for arthritis with limited extension represents a grant of increased benefits prior to February 7, 2011, which was the date the increase was assigned by the RO] * From February 19, 2011 and continuing -20 percent rating for instability under Diagnostic Code 5257 -10 percent rating for arthritis with noncompensable limitation of motion under Diagnostic Code 5003-5260 [these are the ratings assigned by the RO for this time period] The Board has reviewed all evidence of record and found the Veteran is not entitled to any additional rating under the additional codes related to the knee and leg. The weight of the evidence of record does not establish the Veteran experienced ankylosis of the knee, dislocated or removed semilunar cartilage, impairment of the tibia or fibula, or genu recurvatum at any point during the period on appeal. As such, ratings under Diagnostic Codes 5356, 5258, 5259, 5262, and 5263 are not warranted. 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. However throughout the evidence of record no additional loss of motion was found on repetition of motion. Furthermore, the VA examiners in November 2006 and February 2011 each specifically conducted repetitive use testing on the Veteran and noted that although there was objective evidence of pain following repetitive motion, no additional limitation of motion was noted. 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 limitation of motion 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 claimant 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 the schedular rating criteria reasonably describes the Veteran's symptomatology and disability level. The Veteran's primary complaints have been that of pain and a feeling of buckling or giving out. The Board finds that the Veteran's pain and instability, as well as temporary limited range of motion, have been specifically contemplated by the rating criteria 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. However, the record establishes the Veteran is currently still fully employed as an accountant. In the most recent VA examination in February 2011 the examiner specifically noted the Veteran's left knee condition had only caused her to miss less than one week of work in the previous year due to doctor appointments. Thus, the Board finds that Rice is inapplicable since there is no evidence of unemployability due to the Veteran's service connected left knee condition. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to veterans. 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 October 2004 which informed the Veteran of all the elements required by the Pelegrini II Court as stated above. A subsequent letter in May 2006 also informed the Veteran how disability ratings and effective dates were established. Therefore, the Board finds that although all required notice was not provided to the Veteran prior to the first adjudication of this claim, required notice was provided while her appeal was still pending. In addition, the Veteran has been provided with every opportunity to submit evidence and argument in support of her claim and ample time to respond to VA notices. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). Finally, the Veteran's claim was readjudicated following completion of the notice requirements. As such, the Board finds that any defect concerning the timing of the notice requirement was harmless error. 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. The Veteran was also provided with a VA hearing in November 2010. As discussed above, the Veteran Law Judge (VLJ) who conducted the hearing has since retired. However, the Veteran was offered the opportunity for a new hearing with a new VLJ in a February 2013 letter, however the Veteran did not respond. Per the letter the Board has assumed the Veteran's lack of response indicates she did not want another hearing. Also, in Bryant v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. 3.103(c)(2) requires that the VLJ who conducts a hearing fulfill two duties to comply with the regulation. They consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, during the November 2010 Board personal hearing, the VLJ fully explained the issue on appeal. The Veteran was assisted at the hearing by an accredited representative from the Disabled American Veterans, and the VLJ and the representative asked questions regarding the nature and etiology of the Veteran's claimed left knee condition, specifically regarding an increased rating. In addition, the VLJ sought to identify any pertinent evidence not currently associated with the claims file that might have been overlooked or was outstanding that might substantiate the claim, and specifically inquired as to recent VA treatment records. All identified pertinent evidence has been located and associated with the claims file. Neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error in notice provided during the Veteran's hearing constitutes harmless error. The Veteran was also provided with several VA examinations (the reports of which have been associated with the claims file). The Board finds the VA examinations were thorough and adequate and provide a sound basis upon which to base a decision with regard to the Veteran's claim. The VA examiners personally interviewed and examined the Veteran, including eliciting a history from her, and provided the information necessary to evaluate her disability. Furthermore, neither the Veteran nor her representative has voiced any issue with the adequacy of the 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. [Continued on Next Page] ORDER The Veteran's claim for an increased rating for instability in her left knee due to an anterior cruiciate ligament deficiency is denied. An earlier temporary staged 10 percent rating for the Veteran's arthritis in her left knee from April 3, 2007 through April 8, 2009, inclusive, is granted, subject to the laws and regulations governing the award of monetary benefits. A temporary staged rating for limitation of extension of the left knee not to exceed 20 percent from April 9, 2009 through May 13, 2009 and 10 percent from May 14, 2009 through February 18, 2011 is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs