Citation Nr: 1314957 Decision Date: 05/06/13 Archive Date: 05/15/13 DOCKET NO. 07-34 245 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to an increased rating for degenerative disc disease, L4-5, to include an initial compensable rating and a rating in excess of 10 percent as of September 28, 2012. 2. Entitlement to an in increased disability evaluation for temporomandibular joint dysfunction (TMJ), to include an initial rating in excess of 10 percent and a rating in excess of 20 percent as of September 28, 2012. 3. Entitlement to an initial rating in excess of 10 percent for left foot hallux valgus with plantar fasciitis. 4. Entitlement to an initial rating in excess of 10 percent for right foot plantar fasciitis. REPRESENTATION Appellant represented by: Hawaii Office of Veterans Services ATTORNEY FOR THE BOARD B. R. Mullins, Counsel INTRODUCTION The Veteran had active service from August 2001 to August 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California, granting service connection for the disabilities currently on appeal and assigning a noncompensable (0 percent) disability evaluation. Custody of the Veteran's claims file has since been transferred to the RO in Honolulu, Hawaii. The issues currently on appeal were previously remanded by the Board in July 2012 for further evidentiary development. The Board notes that, in addition to the paper claims file, there is a paperless, electronic (Virtual VA) claims file associated with the appellant's claim. A review of the documents in said file reveals that they are duplicative of the physical evidence in the paper claims file. In a statement dated February 2010, the Veteran the Veteran asserted that he was awarded service connection for PTSD as 40 percent disabling during his April 2008 Decision Review Officer (DRO) hearing. This assertion is incorrect, as service connection cannot be granted during a hearing. Furthermore, an August 2009 rating decision confirms that the Veteran's claim of entitlement to service connection for PTSD was in fact denied. The Veteran requested in a statement dated March 2012 that his claim of entitlement to service connection for PTSD be reopened. This issue has not yet been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. In a December 2012 rating decision, the RO increased the disability evaluations associated with the issues currently on appeal. Specifically, the Veteran was assigned: a 10 percent evaluation for his degenerative disc disease of the lumbar spine, effective as of September 28, 2012; an initial 10 percent evaluation for his TMJ and an evaluation of 20 percent as of September 28, 2012; an initial evaluation of 10 percent for his left foot hallux valgus with plantar fasciitis; and an initial evaluation of 10 percent for his right foot plantar fasciitis. Since these grants did not constitute a full grant of the benefits sought on appeal, these claims remain in appellate status. AB v. Brown, 6 Vet. App. 35, 39 (1993). FINDINGS OF FACT 1. Prior to September 28, 2012, the Veteran's service-connected degenerative disc disease of the lumbar spine did not result in limited motion or painful motion. 2. As of September 28, 2012, the Veteran's service-connected degenerative disc disease has resulted in some degree of limited motion with pain. 3. Prior to September 28, 2012, the Veteran's TMJ resulted in popping, locking and pain on motion without limitation of motion. 4. As of September 28, 2012, the Veteran's TMJ has resulted in popping, locking and painful motion, limited to an inter-incisal range of 15 millimeters. 5. Throughout the pendency of the Veteran's claim, the Veteran's left hallux valgus with plantar fasciitis has resulted in pain, fatigue and diminished mobility resulting in moderate impairment. 6. Throughout the pendency of the Veteran's claim, the Veteran's right plantar fasciitis has resulted in pain, fatigue and diminished mobility resulting in moderate impairment. CONCLUSIONS OF LAW 1. The criteria for establishing entitlement to an initial compensable evaluation for degenerative disc disease of the thoracolumbar spine have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5235-43 (2012). 2. The criteria for establishing entitlement to an evaluation in excess of 10 percent, as of September 28, 2012, for degenerative disc disease of the thoracolumbar spine, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5235-43 (2012). 3. The criteria for establishing entitlement to an initial evaluation in excess of 10 percent for TMJ have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.150, Diagnostic Codes 9900-16 (2012). 4. The criteria for establishing entitlement to an evaluation of 30 percent for TMJ as of September 28, 2012, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.150, Diagnostic Codes 9900-16 (2012). 5. The criteria for establishing entitlement to an initial evaluation in excess of 10 percent for left hallux valgus with plantar fasciitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5276-84 (2012). 6. The criteria for establishing entitlement to an initial evaluation in excess of 10 percent for right plantar fasciitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.40, 4.45, 4.71a, Diagnostic Codes 5276-84 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veteran's claims arise from his disagreement with the initial evaluation assigned following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), Goodwin v. Peake, 22 Vet. App. 128, 134 (2008), Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is required for these claims. As to VA's duty to assist, VA has associated with the claims folder the Veteran's VA treatment records, and June 2005 and September 2012, he was afforded formal VA examinations for the disabilities on appeal. VA also contacted the Veteran in July 2012 requesting that he identify any additional treatment he had received for his service-connected disabilities. However, the Veteran did not respond to VA's request and no further evidence has been identified. The Board finds that no additional assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Additionally, the Board finds there has been substantial compliance with its July 2012 remand directives. The Board notes that the Court has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand). The record indicates that the Appeals Management Center (AMC) requested that the Veteran identify any additional treatment he had received for his disabilities and he was rescheduled for new examinations in September 2012. The AMC later issued a rating decision and a Supplemental Statement of the Case (SSOC). Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Relevant Laws and Regulations Disability ratings are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7 (2011). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2 (2011). As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. As is the case here, where entitlement to compensation has already 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). Nevertheless, in Fenderson v. West, the Court noted that where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. 12 Vet. App. 119, 126 (1999). Lumbar Spine Disability The Veteran contends that he is entitled to increased disability evaluations for his service-connected degenerative disc disease of the lumbar spine. For historical purposes, the Veteran was originally granted service connection for this disability in a March 2006 rating decision. A 0 percent disability evaluation was assigned under Diagnostic Code 5242, effective as of August 6, 2005. A timely notice of disagreement regarding the assigned rating was received from the Veteran in November 2006. The assigned rating was continued in a September 2007 statement of the case, which the Veteran appealed to the Board in October 2007. His disability evaluation was subsequently increased to 10 percent in a December 2012 rating decision, effective as of September 28, 2012. The Veteran has not expressed satisfaction with the newly assigned rating, and as such, this issue is still on appeal. See AB, 6 Vet. App. at 39. The Veteran was afforded a general VA examination in June 2005. The Veteran described pain in the low back that began approximately three and a half years earlier. He described the pain as constant and radiating into the right lower back. He denied any paresthesias or loss of bladder and bowel control. He described the pain as aching, cramping and sharp and he rated it as an 8 out of 10. It was brought on by physical activities, such as prolonged standing. The Veteran was able to function without medication but he had difficulty with heavy lifting and running. The Veteran denied any periods of incapacitation or any time lost from work due to this condition. Examination revealed flexion to 90 degrees, extension to 30 degrees, bilateral lateral flexion to 30 degrees and bilateral lateral rotation to 30 degrees. There was no evidence of painful motion and the spine was not limited by pain, fatigue, weakness, lack of endurance or incoordination after repetitive use. There was also no evidence of muscle spasm, tenderness or weakness. There was also no evidence of radiating pain or intervertebral disc syndrome. A neurological evaluation of the lower extremities was also normal. An X-ray of the lumbar spine revealed straightening, most likely secondary to muscle spasm. There was also mild degeneration at L4-5. The Veteran was diagnosed with mild degenerative disc disease of the lumbar spine. The examiner described the Veteran's functional limitation as avoiding heavy lifting. According to an August 2005 X-ray of the lumbosacral spine, the lumbar spine was normal with no evidence to indicate ankylosing spondylitis. A January 2006 physical therapy note reflects that the Veteran was suffering from low back pain that was better with physical therapy. Another January 2006 VA treatment note reflects a history of myofascial pain syndrome and chronic low back pain. The Veteran described this pain as dull, pressure like and sometimes sharp. He noted that this pain used to be intermittent but that it was now constant. He also reported that pain sometimes radiated toward the right side. The Veteran underwent a Persian Gulf examination in December 2006. The Veteran described himself as severely impaired. He noted back pain for the past four years. Examination revealed no skeletal deformities and the Veteran's posture was erect and his gait was easy and well-balanced. The examiner concluded that there were no deformities or dysfunction in the joints or spine secondary to pain or mechanical problems. An X-ray of the lumbar spine was noted to reveal a normal spine. A neurological evaluation was also interpreted to be normal. The Veteran was diagnosed with myofascial pain syndrome affecting the back, the right shoulder, the knee and the left ankle. According to a January 2007 VA treatment record, the Veteran was suffering from chronic low back pain. He indicated that his pain was no different or worse than usual. However, his pain was worsened with prolonged sitting or weight-bearing. He denied any urinary or bowel incontinence at this time, as well as any weakness or paresthesias. The Veteran indicated that he experienced a lot of relief the prior year while undergoing physical therapy. An April 2008 magnetic resonance image (MRI) of the spine revealed mild desiccation and minimal annular bulging with no evidence of stenosis at L2-3. There was also mild facet degenerative hypertrophy and a 2 millimeter (mm) annular disc bulge at L4-5, causing left lateral recess narrowing in the vicinity of the traversing left L5 root. In August 2008, the Veteran described progressive low back pain since falling in service. He now reported right sided low back pain that was constant in nature that extended up into his thoracic spine between his scapula and across to the left side. He also described some rare radiation into his right lateral thigh and into the dorsum of his foot. He indicated that his pain was worse with being in one position and that it was improved with movement or the use of a TENS unit. A September 2008 record notes a diagnosis of low back pain secondary to sacroiliac dysfunction with good response to sacroiliac ligament injection. There was also underlying myofascial pain. According to an October 2008 VA treatment record, the Veteran had low back pain on the right that was worse with activity and better with sacroiliac ligament injection performed in August. The pain was noted to be sharp and localized with no radiation to the lower extremities. A September 2009 VA outpatient treatment record also reflects complaints of low back pain with infrequent pain into the right lower leg. It was noted that the Veteran was had been attending yoga and swimming. The Veteran was scheduled for a VA examination to determine the current severity of his service-connected disabilities in January 2011. However, due to miscommunication between VA and the Veteran, his examination was scheduled while he was undertaking employment overseas. The Veteran was scheduled for another VA examination of the lumbar spine following his return in July 2012. The Veteran was noted to have diagnoses of degenerative disc disease of the lumbar spine, as well as chronic pain syndrome/fibromyalgia. The Veteran described chronic back pain with unsustained pain radiating into the lower extremities in variable patterns. There were no hard neurological abnormalities found upon numerous examinations, including this one. The examiner further noted that the changes described in the Veteran's MRI were mild and minimal and did not cause his current symptoms. The examiner explained to the Veteran that his case was typical of chronic pain syndrome or fibromyalgia and it did not represent a medical failure to diagnose a herniated disc, and that any future medical reports needed to reflect the proper diagnosis. The Veteran reported flare-ups that resulted in additional pain. Range of motion testing revealed forward flexion to 80 degrees (with objective evidence of pain beginning at 75 degrees), extension to 25 degrees (with objective evidence of pain beginning at 20 degrees), bilateral lateral flexion to 30 degrees or greater (with no objective evidence of pain) and bilateral lateral rotation to 30 degrees or more (with no objective evidence of pain). The Veteran was able to perform repetitive range of motion testing with no additional limitation in motion. There was functional loss resulting from excess fatigability and pain on movement. There was tenderness to palpation, but no guarding or muscle spasm of the thoracolumbar spine. Neurological testing revealed normal muscle strength with normal reflexes and sensation of the lower extremities, bilaterally. There were no other signs or symptoms of radiculopathy. There was also no evidence of intervertebral disc syndrome. The examiner concluded that there was a moderate negative effect on the Veteran's usual occupation and daily activities due to pain and decreased mobility. The Board will first address the claim of entitlement to an initial compensable disability evaluation, prior to September 28, 2012. The Veteran's lumbar spine disability is currently rated under Diagnostic Code 5242. Under this code, a 10 percent evaluation will be assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of height. 38 C.F.R. § 4.71a. According to the June 2005 VA examination, the Veteran had a full range of motion without pain. Subsequent records do reflect complaints of pain, but there is no further medical evidence of limited motion until the September 28, 2012, VA examination. Furthermore, the September 2012 VA examiner explained that the Veteran's history of symptomatology was related to myofascial pain syndrome/fibromyalgia - a disability which the Veteran has not claimed he should be service-connected for. A September 2009 record also reflects that the Veteran had been participating in both swimming and yoga, further suggesting that the Veteran's now service-connected degenerative disc disease was not resulting in painful or limited motion. The record contains no further evidence suggesting painful or limited motion due to degenerative disc disease until the September 2012 VA examination. Therefore, there is no evidence of limited motion of sufficient severity due to the service-connected degenerative disc disease to warrant a 10 percent disability evaluation prior to September 28, 2012. Evaluation of a service-connected disability involving a joint rated on limitation of motion does require adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. DeLuca v. Brown, 8 Vet. App. 202 (1995). However, as explained in the preceding paragraph, there is no evidence of painful motion, weakness or other symptomatology stemming from the Veteran's service-connected degenerative disc disease prior to September 28, 2012. The Veteran had a full range of motion without pain in June 2005 and the December 2006 Persian Gulf examination notes that there were no skeletal deformities or dysfunction in the joints or the spine. X-rays were normal, but the Veteran was noted to have myofascial pain syndrome. The Veteran is not service-connected for this disability, and according to the September 2012 VA examiner, myofascial pain syndrome/fibromyalgia is what has been responsible for the Veteran's symptomatology. While an April 2008 MRI did note degeneration, the 2012 examiner specifically stated that changes described on this MRI were not the cause of the Veteran's symptoms. As such, there is no evidence of functional loss due to symptoms such as pain, fatigue or incoordination stemming from a service-connected disability, prior to September 28, 2012. The Board recognizes that the June 2005 VA examiner did assign a diagnosis of mild disc degeneration per X-ray. Degenerative arthritis is rated under Diagnostic Code 5003. Degenerative arthritis, when established by X-ray findings, will be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. When the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate diagnostic codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Again, as already noted, there is no objective evidence of pain or limited motion due to the service-connected disability of degenerative disc disease prior to September 28, 2012. The Veteran even provided testimony at a DRO hearing in April 2008, but he did not report limited motion at this time. Rather, he noted that he would wake up sore but that he was able to pop his back, stretch and do his exercises, which would relieve a bit of his pain until that night. As a final matter, the Board notes that the June 2005 VA examination report does note that X-rays reveal straightening of the lumbar spine, most likely secondary to muscle spasm. A 20 percent disability evaluation is available when there is evidence of muscle spasm severe enough to result in abnormal spinal contour. See 38 C.F.R. § 4.71a. However, the Board finds the June 2005 diagnosis to be of little probative value. Initially, the examiner previously stated in the same report that the Veteran's posture was normal and that he did not experience muscle spasms associated with the lumbar spine. As such, the examination report itself is contradictory. Furthermore, a subsequent X-ray taken in August 2005 and reviewed in December 2006 was determined to be normal. As such, the preponderance of the evidence of record does not support the June 2005 finding of altered spinal contour due to muscle spasm. The preponderance of the evidence of record also demonstrates that the Veteran is not entitled to a disability evaluation in excess of 10 percent at any time since September 28, 2012, for his service-connected degenerative disc disease of the thoracolumbar spine. A higher disability evaluation of 20 percent requires evidence of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a. According to the September 2012 VA examination report, the Veteran had forward flexion to 80 degrees, extension to 25 degrees, bilateral lateral flexion to 30 degrees and bilateral lateral rotation to 30 degrees, for a combined thoracolumbar range of motion of 225 degrees. As such, the Veteran has maintained a range of motion far in excess of that envisioned by a 20 percent disability evaluation. There was also no guarding or muscle spasm associated with the thoracolumbar spine. As such, none of the criteria for a higher disability evaluation of 20 percent have been met. See id. The Board has again considered whether there is evidence of functional loss that may warrant a higher rating. See DeLuca, 8 Vet. App. at 202. The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of their normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. According to the September 2012 VA examination report, the Veteran was still capable of forward flexion of the thoracolumbar spine to 75 degrees and extension to 20 degrees before he experienced any pain. Also, while the examiner noted fatigability with a moderate negative effect on the Veteran's usual occupation and daily activities, there is no evidence of functional impairment so severe as to result in limited motion sufficient to warrant a higher disability evaluation or other symptomatology contemplated by a higher disability evaluation. As such, a disability evaluation in excess of 10 percent based on functional loss is not warranted at any time during the pendency of this claim. The Board has also considered whether a separate disability evaluation based on neurological impairment may be warranted at any time during the pendency of this claim. Note (1) to 38 C.F.R. § 4.71a instructs the rater to evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. However, the Veteran was afforded a neurological evaluation in June 2005, December 2006 and September 2012, and all of these evaluations were interpreted to be completely normal. While the Veteran has reported intermittent radiating pain into the lower extremities, a separate evaluation requires objective, rather than subjective, abnormalities. See id. As such, a separate disability evaluation for neurological abnormalities is not warranted. The Board has also considered whether a higher evaluation may be warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See 38 C.F.R. § 4.71a. However, a review of the evidence of record consistently reflects that the Veteran has not been found to be suffering from intervertebral disc syndrome or incapacitating episodes. While the Veteran did describe bed rest in his October 2007 appeal to the Board, for purposes of evaluations under this Formula, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Note (1). There is no evidence of this of record, and as such, a higher evaluation under this Formula is not warranted. The Board recognizes that the Veteran believes he is entitled to higher disability evaluations in this case. The Veteran indicated in his October 2007 appeal to the Board that his pain was very intense, preventing him from running or sitting or standing for more than a few minutes. He also reported that he had many muscle spasms in the low back. While the Board has considered these statements, however, they fail to reflect that a compensable disability evaluation was warranted prior to September 28, 2012. An objective examination in June 2005 revealed a full range of motion without pain. A December 2006 X-ray of the lumbar spine was also noted to be normal. An April 2008 MRI also revealed only mild degeneration. As explained by the September 2012 VA examiner, this was not responsible for the Veteran's symptomatology, but rather, his chronic pain syndrome - a disability for which service connection has not been established. As such, despite the reports of pain on the part of the Veteran, objective evidence of record fails to support the claim of entitlement to a higher disability evaluation due to service-connected degenerative disc disease at any time during the pendency of this claim. The rating schedule represents as far as practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. 38 C.F.R. § 3.321(a), (b) (2012). To afford justice in exceptional situations, an extraschedular rating can be provided. 38 C.F.R. § 3.321(b). The Court has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Prior to September 28, 2012, the record contains no evidence of limitation of motion. There is evidence of pain, but it has not been related to the Veteran's service-connected disability, but rather, to his nonservice-connected myofascial pain/fibromyalgia. Since September 28, 2012, the Veteran's symptoms have included pain and some limitation of motion. However, such impairment is contemplated by the rating criteria. See 38 C.F.R. § 4.71a, Diagnostic Codes 5235-43. These codes allow for a higher disability evaluation upon a showing of worsening symptomatology. Therefore, the rating criteria reasonably describe the Veteran's disability. The evidence also does not suggest that the Veteran's lumbar spine disability has resulted in marked interference with employment above and beyond that considered by the assigned disability evaluation. In fact, the record reflects that the Veteran recently completed a job overseas from August 2010 to February 2012. There also is no evidence of hospitalization associated with this condition. Therefore, referral for consideration of an extraschedular rating is not warranted. Based upon the guidance of the Court in Hart v. Mansfield, 21 Vet. App. 505 (2007), the Board has considered whether further staged ratings are appropriate. However, as outlined above, there is simply no medical or lay evidence available prior to September 28, 2012, to demonstrate that the Veteran is entitled to a compensable disability evaluation. Likewise, there is nothing to suggest that an evaluation in excess of 10 percent has been warranted at any time since September 28, 2012. As such, staged ratings are not warranted. The Board has also considered whether a remand for consideration of total disability benefits based on individual unemployability is warranted. The Court has held that TDIU is an element of an increased rating claim. Rice v. Shinseki, 22 Vet. App. 447 (2009). However, the record contains no evidence or allegation of unemployability. In fact, the Veteran recently returned from overseas employment from August 2010 to February 2012. Since there is no evidence of unemployability, further consideration of this matter is not warranted. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claim of entitlement to an increased disability evaluation for degenerative disc disease of the lumbar spine, to include an initial compensable rating and a rating in excess of 10 percent as of September 28, 2012, must be denied. TMJ Dysfunction The Veteran also contends that he is entitled to increased disability evaluations for his service-connected TMJ dysfunction. The record reflects that service connection was originally granted for this disability in a March 2006 rating decision. A 0 percent disability evaluation was assigned under Diagnostic Code 9999-9905, effective as of August 6, 2005. A timely notice of disagreement pertaining to the assigned rating was received by VA in November 2006. The noncompensable disability evaluation was continued in a September 2007 statement of the case, which the Veteran appealed to the Board in October 2007. Subsequently in a December 2012 rating decision, the Veteran's initial disability evaluation was increased to 10 percent, and a 20 percent evaluation was assigned as of September 28, 2012. The Veteran has not expressed satisfaction with the newly assigned ratings, and as such, both issues are still on appeal. See AB, 6 Vet. App. at 39. The Veteran underwent an examination for his jaw in June 2005. The Veteran described symptoms of pain, locking, popping and cracking. It was noted that these symptoms were more severe in the morning. Examination of the mandible and maxilla revealed normal findings. There were no abnormal findings of the ramus or the palate either. Range of motion testing revealed inter-incisal motion to more than 40 millimeters (mm), and bilateral lateral excursion to greater than 4 mm. Severe clicking was noted in both joints when closing. The Veteran was diagnosed with bilateral temporomandibular joint disorder. According to a September 2008 VA outpatient treatment record, the Veteran's jaw pain was mild. His jaw did lock in the morning following the use of his brace. A MRI of the jaw was taken in October 2008. This revealed an intact right TMJ with no significant subluxation of the articular disc. The left TMJ had mild degenerative changes with slight flattening of the condylar head. There was also decreased anterior translation of the condyle on open mouth views. An October 2008 VA treatment record also reflects jaw pain, popping and locking. The Veteran avoided chewing things such as gum or popcorn and reported aching after speaking for long periods of time. According to a September 2009 VA outpatient treatment record, the Veteran's TMJ dysfunction resulted in his jaw sometimes locking in the morning. He had to self-release his jaw when this occurred. The Veteran was most recently afforded a VA examination for his TMJ in July 2012. Oral examination exhibited no apparent evidence of dental pathology at this time. No treatment was required for the Veteran's TMJ at this time and he was not eligible for more than bite splint therapy. The Veteran wore store bought athletic mouth guards and personally massaged his jaw for sore muscles. The Veteran endorsed flare-ups, noting that too much mandibular movement or force in chewing or through wide open yawning caused increased TMJ area muscular pain and headaches. Range of motion testing revealed lateral excursion to 3 mm (with objective evidence of pain at 2 mm) and inter-incisal distance of 23 mm (with objective evidence of pain at 15 mm). The Veteran was capable of repetitive motion without an additional loss in range of motion. He did suffer from functional loss, however, due to reduced movement, weakened movement and pain on movement. There was also evidence of localized tenderness on palpation and clicking or crepitation of the joints. This condition was noted to have an impact on the Veteran's ability to work in that his pain and headaches reduced his ability to concentrate. The Veteran also had limited consumption of any items that required hard chewing and he endorsed headaches if he performed public speaking for 10 minutes or more. The examiner concluded that this condition had worsened since separation from active duty and that Botox and Lidocaine injections around this area resulted in less discomfort subsequent to active duty. The preponderance of the above evidence demonstrates that the Veteran is entitled to a disability evaluation of 30 percent for his TMJ as of September 28, 2012. According to the September 2012 VA examination report, the Veteran had an inter-incisal range of motion to 23 mm. Under Diagnostic Code 9905, this warrants a 20 percent disability evaluation. However, the examiner noted that the Veteran in fact experienced pain at just 15 mm of inter-incisal motion. As noted in the previous section, functional loss due to pain must be considered when assigning a disability evaluation based on limitation of motion. See 38 C.F.R. § 4.40; DeLuca, 8 Vet. App. at 202. According to Diagnostic Code 9905, inter-incisal motion to 15 mm warrants a 30 percent disability evaluation. 38 C.F.R. § 4.150. However, the preponderance of the evidence of record demonstrates that the Veteran is not entitled to a disability evaluation in excess of 30 percent at any time since September 28, 2012. A higher disability evaluation of 40 percent is warranted when there is evidence of inter-incisal motion limited to between 0 and 10 mm. See id. The record reflects that even when taking into consideration the Veteran's functional loss due to pain, he is capable of inter-incisal motion to at least 15 degrees. As such, a higher disability evaluation is not warranted at any time since September 28, 2012, under Diagnostic Code 9905. The Board has also considered whether any other applicable code may permit a higher rating since September 28, 2012. Higher ratings are available when there is evidence of impairment of the maxilla or mandible, the ramus or when there is a loss of all of the teeth. See 38 C.F.R. § 4.150. However, the September 2012 VA examination report reflects no dental pathology at this time. There was also no finding of a disability of the mandible or maxilla that would warrant a higher disability evaluation, such as the loss of approximately one-half of the mandible. As such, a higher disability evaluation is not warranted based on any other applicable diagnostic code. See 38 C.F.R. § 4.150, Diagnostic Codes 9900-16. The preponderance of the evidence of record also demonstrates that the Veteran is not entitled to a disability evaluation in excess of 10 percent at any time prior to September 28, 2012. According to the June 2005 examination report, the Veteran had inter-incisal motion to more than 40 mm and lateral excursion to greater than 4 mm. A compensable disability evaluation is not warranted for this degree of motion. See 38 C.F.R. § 4.150, Diagnostic Codes 9905, 9906. Nonetheless, the RO assigned an initial compensable disability evaluation of 10 percent due to the fact that the June 2005 examination report reflected painful motion. A higher disability evaluation of 20 percent requires inter-incisal range limited to between 21 mm to 30 mm. See id. As the June 2005 examination report clearly reflects inter-incisal motion in excess of 30 mm (even when considering functional loss due to pain), a higher disability evaluation of 20 percent is not warranted as of this time. Id. Subsequent records prepared prior to September 28, 2012, do reflect continued symptoms of pain, locking and popping. However, none of these records reflect a degree of limited motion that would warrant a higher disability evaluation. The Board has again considered whether there are any other applicable diagnostic codes that might permit a higher disability evaluation prior to September 28, 2012. However, the June 2005 examination report reflected no impairment of the mandible, maxilla, ramus or the palate. The September 2012 examination report also reflected that dentition was normal. As such, there is no evidence to suggest that any other relevant diagnostic code is applicable to the Veteran's claim. See 38 C.F.R. § 4.150, Diagnostic Codes 9900-16. The Board recognizes that the Veteran believes he is entitled to increased disability evaluations. In his October 2007 appeal to the Board, the Veteran argued that he experienced lockjaw, cracking and popping every morning with muscle tenderness. However, the rating criteria do not provide a higher rating based on symptoms such as locking or popping. Also, the RO considered the Veteran's reports of pain when assigning an initial disability evaluation of 10 percent. The Veteran has not provided any other medical or lay evidence to demonstrate that he meets the criteria for a higher rating at any time during the pendency of his appeal. As discussed in the previous section, an extraschedular rating can be provided in exceptional situations to afford justice. 38 C.F.R. § 3.321(b). In the present case, the Veteran's symptoms associated with his service-connected TMJ include limited motion of the jaw due to pain and locking. However, such impairment is contemplated by the rating criteria. See 38 C.F.R. § 4.150, Diagnostic Code 9905. This code allows for a higher disability evaluation upon a showing of worsening symptomatology. Therefore, the rating criteria reasonably describe the Veteran's disability. The evidence also does not suggest that the Veteran's disability has resulted in marked interference with employment above and beyond that considered by the assigned disability evaluation, or that the Veteran has been hospitalized as a result of this condition. Therefore, referral for consideration of an extraschedular rating is not warranted. Resolving all reasonable doubt in favor of the Veteran, the Board finds that a disability evaluation of 30 percent for TMJ is warranted as of September 28, 2012. See 38 U.S.C. § 5107(b). However, the preponderance of the evidence of record demonstrates that a disability evaluation in excess of 10 percent is not warranted at any time prior to September 28, 2012. In this limited regard, the Veteran's claim is granted. Left Hallux Valgus with Plantar Fasciitis/Right Plantar Fasciitis Finally, the Veteran contends that he is entitled to increased disability evaluations for his left foot hallux valgus with plantar fasciitis and his right foot plantar fasciitis. For historical purposes, the Veteran was granted service connection for these disabilities in a March 2006 rating decision. 0 percent disability evaluations were assigned under Diagnostic Code 5299-5280 for the left foot and 5284 for the right foot, effective as of August 6, 2005. VA received a timely notice of disagreement from the Veteran in November 2006. The 0 percent disability evaluations were continued in a September 2007 statement of the case which the Veteran appealed to the Board in October 2007. Subsequently, in a December 2012 rating decision, the Veteran's initial disability evaluation for his right and left foot disabilities was increased to 10 percent. The Veteran has not expressed satisfaction with the assigned rating and it is, therefore, still on appeal. See AB, 6 Vet. App. at 39. The applicable Diagnostic Code for the Veteran's left foot disability was also changed to 5284 at this time. According to a June 2005 general VA examination, the Veteran was having pain in the feet. It was noted that he was diagnosed with plantar fasciitis approximately four years earlier. The Veteran endorsed pain when standing and walking as well as at rest. He also had swelling and fatigue with standing and walking. He reported a history of difficulty with prolonged walking and standing but denied having lost any time from work due to this condition. Examination of the feet revealed evidence of mild flat feet deformities. The nonweight bearing alignment of the Achilles tendon was good while the weight-bearing alignment of the tendon was fair. There was also evidence of mild tenderness in the plantar fasciae, greater in the left foot than in the right. There was also evidence of mild hallux valgus on the left. There was no evidence of tenderness in the metatarsal heads or high-arch or claw foot deformities. There was also no evidence of hallux rigidus or pes cavus, or evidence of painful motion, edema or disturbed circulation. There were no hammertoe deformities or inversion or eversion deformities, or, tenderness in the plantar fasciae. It was noted that the Veteran would require shoe inserts that should correct his problems. The Veteran was diagnosed with bilateral plantar fasciitis, greater in the left than in the right, mild bilateral pes planus and mild hallux valgus of the left foot. The Veteran's functional limitations were noted to be that he should avoid jumping, wearing tight shoes and walking on uneven ground. According to a VA podiatry note dated January 2006, the Veteran was seen with complaints of a painful bunion on his left foot. This was noted to bother the Veteran mainly when he ran. However, he did not run as much as he used to. The Veteran also noted a bone spur developing at the base of the first metatarsal. The podiatrist also noted that the Veteran had had flatfeet for a long time. The Veteran was diagnosed with hallux valgus, hypermobility of the first metacarpal joint and flatfeet. The Veteran underwent a Persian Gulf examination in December 2006. The Veteran reported left ankle pain, but examination revealed no deformities or dysfunction in the joints secondary to pain or mechanical problems. An X-ray of the left foot revealed no evidence of acute left foot osseous injury or significant degenerative disease. The Veteran was diagnosed with myofascial pain syndrome affecting the left ankle, among other areas. A bunion of the left foot was also diagnosed. The Veteran was most recently afforded a VA examination of the feet in July 2012. The Veteran was noted to be suffering from hallux valgus (diagnosed in 2006) and pes planus. The Veteran was noted to be suffering from flat feet and that this started in boot camp. His pain had continued to worsen since that time and the feet were sore over the soles and heels. He also had a mild left hallux valgus of the left foot. There was no evidence of Morton's neuroma, metatarsalgia, or hammer toes. There were also no symptoms associated with his mild left hallux valgus. There was also no history of hallux rigidus, pes cavus (claw foot) or malunion of the tarsal or metatarsal bones. There was no history of any other injuries to the feet. Examination revealed no weakness or tenderness of the feet. X-rays of the left foot also revealed dorsal briding osteophyte between the tarsal and metatarsal base with no evidence of significant degenerative disease. Pertaining to the Veteran's pes planus, there was evidence of pain on use in both feet. There was no pain on manipulation, swelling or characteristic calluses, however. There was no evidence of extreme tenderness of the plantar surface of either foot or marked deformity of either foot. There was also no marked pronation of either foot. The weight-bearing line did not fall over or medial to the great toe and there was no inward bowing of the Achilles tendon or marked inward displacement and severe spasm of the Achilles tendon. No other pertinent physical findings were noted. This condition had a moderate negative effect on the Veteran's usual occupation and daily activities due to pain and decreased mobility. The preponderance of the above evidence demonstrates that he is not entitled to a disability evaluation in excess of 10 percent for either foot disability at any time during the pendency of this claim. The Veteran is rated under Diagnostic Code 5284. Under this code, a higher disability evaluation of 20 percent is available for "other" foot injuries that are "moderately severe" in severity. See 38 C.F.R. § 4.71a. A 10 percent disability evaluation is meant to compensate a Veteran with a foot injury that is "moderate" in severity. Id. According to the June 2005 VA examiner, while the Veteran did experience difficulty with prolonged standing and walking, he had not lost any time from work due to this disability. Examination of the feet only revealed mild flat feet deformities and it was noted that shoe inserts would resolve the Veteran's problems. No functional limitations aside from avoiding jumping, wearing tight shoes and walking on uneven ground were noted. Likewise, the September 2012 VA examination report reflects symptoms such as soreness over the soles and heels with pain on use. However, there was no pain on manipulation, swelling or characteristic calluses. The examiner concluded that this disability had a "moderate" negative impact on the Veteran's activities of daily living at this time. As such, the Veteran's disabilities of the feet are more appropriately characterized as "moderate" in severity, warranting only a 10 percent evaluation under Diagnostic Code 5284. The Board has also considered whether a higher disability evaluation for either foot may be warranted under any other applicable diagnostic code. A higher evaluation of 20 percent (or 30 percent for bilateral flatfeet) is warranted when there is evidence of severe bilateral flatfoot with objective evidence of marked deformity (pronation, abduction, etc), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities. 38 C.F.R. § 4.71a, Diagnostic Code 5276. While the Veteran has been found to suffer from bilateral flat feet, the September 2012 VA examiner found that there was no evidence of pain on manipulation, marked deformity, swelling or characteristic calluses. While the Veteran did report swelling with standing and walking upon examination in June 2005, no edema was noted upon objective examination. As such, the Veteran has not met the criteria for a higher disability evaluation due to "severe" flatfeet at any time during the pendency of this claim. There is also no evidence of claw foot or malunion of the tarsal or metatarsal bones, and as such, higher disability evaluations are not warranted for these conditions. See id at Diagnostic Codes 5278, 5293. There are no other applicable diagnostic codes that would permit a disability evaluation in excess of 10 percent. The Board again recognizes that the Veteran believes he is entitled to a higher disability evaluation. However, the Veteran has not provided VA with any statement or evidence to demonstrate that he meets the rating criteria for a disability evaluation in excess of 10 percent at any time during the pendency of his claim. The Veteran described discomfort when he would stand, walk or run for more than a few minutes in his October 2007 appeal to the Board. However, despite the symptoms, the Veteran's disability has been described as no more than "moderate" by a VA examiner. The evidence also reflects that the Veteran is still able to perform activities of daily living, including walking, yoga and swimming, despite this disability. As such, the Veteran's statements fail to demonstrate that he meets the criteria for a disability evaluation in excess of 10 percent for either foot at any time during the pendency of this claim. As discussed in the previous section, an extraschedular rating can be provided in exceptional situations to afford justice. 38 C.F.R. § 3.321(b). In the present case, the Veteran's symptoms associated with his service-connected foot disabilities include moderate negative effects due to pain and decreased mobility. However, such impairment is contemplated by the rating criteria. See 38 C.F.R. § 4.71a, Diagnostic Code 5284. This code also allows for a higher disability evaluation based on a worsening of symptomatology. Therefore, the rating criteria reasonably describe the Veteran's disabilities. The evidence also does not suggest that either of the Veteran's disabilities has resulted in marked interference with employment above and beyond that considered by the assigned disability evaluation, or that the Veteran has been hospitalized as a result of this condition. Therefore, referral for consideration of an extraschedular rating is not warranted. Since the preponderance of the evidence is against the claim, the provisions of 38 U.S.C. § 5107(b) regarding reasonable doubt are not applicable. The Veteran's claims of entitlement to disability evaluations in excess of 10 percent for left hallux valgus with plantar fasciitis, and, right plantar fasciitis, must be denied. ORDER The claim of entitlement to an initial compensable evaluation for degenerative disc disease, L4-5, is denied. The claim of entitlement to an evaluation in excess of 10 percent for degenerative disc disease, L4-5, as of September 28, 2012, is denied. The claim of entitlement to an initial evaluation in excess of 10 percent for temporomandibular joint dysfunction (TMJ) is denied. An evaluation of 30 percent for TMJ, as of September 28, 2012, is granted, subject to the law and regulations governing the payment of monetary benefits. The claim of entitlement to an initial evaluation in excess of 10 percent for left foot hallux valgus with plantar fasciitis is denied. The claim of entitlement to an initial evaluation in excess of 10 percent for right foot plantar fasciitis is denied. ____________________________________________ WAYNE M. BRAEUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs