Citation Nr: 1522780 Decision Date: 05/29/15 Archive Date: 06/11/15 DOCKET NO. 08-37 648 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for a low back disability, including sciatic nerve involvement and a right hip disorder to include as secondary to a service-connected disability. 2. Entitlement to a compensable rating for right fourth hammertoe with non-tender scar. 3. Entitlement to a compensable rating for dry eye syndrome. 4. Entitlement to service connection for temporomandibular joint disorder. 5. Entitlement to increased rating higher than 10 percent for neuritis of the fifth cranial nerve. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Sarah Richmond, Counsel INTRODUCTION The Veteran served on active duty from November 1991 to November 2001. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the St. Petersburg, Florida, Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2008 the RO, in pertinent part, granted service connection for right fourth hammertoe with non-tender scar and assigned a noncompensable (0 percent) rating, effective November 15, 2001. The RO, in pertinent part, denied an increased rating higher than 0 percent for dry eye in a June 2009 rating decision. In June 2010, the Veteran testified at a personal hearing before the undersigned Veterans Law Judge. A copy of the transcript of that hearing is of record. In August 2010, the RO denied an increased rating higher than 10 percent for neuritis of the fifth cranial nerve and also denied service connection for temporomandibular joint disorder. The Veteran separately appealed this rating decision, as reflected in VBMS records. The service connection claim for the back with right hip disorder and increased rating claims for right fourth hammertoe with non-tender scar and dry eye were previously before the Board in February 2012, at which time the claim was remanded for additional development. The case is now returned for appellate review. The issues of service connection for tinnitus and for a temporary total rating based on convalescence following foot surgery have been raised by the record in statements dated in September 2013 and August 2013, respectively, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). The issues of service connection for a low back disorder with right hip disorder, and increased ratings for right fourth hammertoe with non-tender scar and neuritis of the fifth cranial nerve are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The medical evidence of record shows that the Veteran's currently diagnosed temporomandibular joint dysfunction was incurred in service. 2. The Veteran's service-connected dry eye syndrome has been manifested by active pathology, including dryness requiring daily drops, light sensitivity, and blurred vision, but has not been manifested by impairment of visual acuity or field loss, rest-requirements, or episodic incapacity. CONCLUSIONS OF LAW 1. The criteria for service connection temporomandibular joint dysfunction have been met. 38 U.S.C.A. § 1110 (West 2014); 38 C.F.R. § 3.303 (2014). 2. The criteria for an increased disability rating of 10 percent, but no higher, for dry eye syndrome have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.84a, Diagnostic Code 6099-6001 (2008 & 2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). RO letters dated in July 2008 and August 2008 informed the Veteran of all of the elements required by 38 C.F.R. § 3.159(b), as stated above, regarding her increased rating claim for dry eyes. The Veteran was also notified that she should submit evidence reflecting her disability symptoms and the effect her dry eyes disorder had on employment, in that she was told that she could submit statements from employers as to job performance, lost time, or other information regarding how her condition affects her ability to work. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). The letters also provided the Veteran with information on how VA determines and assigns effective dates. Regarding the duty to assist, the RO has obtained the Veteran's service records and VA treatment records. The RO also has provided her with VA examinations in May 2009 and March 2012. The March 2012 VA examiner referred to a VA treatment record dated in May 2011, which is not in the claims file or virtual records. However, the examiner reported on the findings on the report, which were cumulative of the information provided on the VA examination and previous examinations and treatment records. Therefore, the Board finds that there would be no useful purpose in delaying the case to obtain a copy of the May 2011 VA treatment record. Also as noted below, the outcome of this case is favorable to the Veteran's claim. The Board notes that the March 2012 examination was performed more than three years ago. However, there is no evidence indicating that there has been a material change in the severity of the Veteran's service-connected dry eye syndrome since she was last examined. The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. VAOPGCPREC 11-95. The Veteran has been afforded a hearing in June 2010 before the undersigned Veterans Law Judge (VLJ) in which she presented oral argument in support of her increased rating claim for dry eye syndrome. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) (2010) requires that the VLJ or DRO who chairs a hearing fulfill two duties to comply with the above the regulation. These duties 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. Here, during the June 2010 hearing, the VLJ specifically sought to clarify why the Veteran believed her dry eye disorder represented symptoms that were worse than contemplated for a 0 percent rating. The VLJ also sought to identify any pertinent evidence not currently associated with the claims by questioning the Veteran about her current treatment. In addition, the Veteran volunteered her treatment history and symptoms since service. Neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the June 2010 Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate her claim. As such, the Board finds that, consistent with Bryant, the undersigned VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Accordingly, the duty to assist has been satisfied and there is no reasonable possibility that any further assistance to the Veteran by VA would be capable of substantiating her claim. 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. The Veteran's service connection claim for temporomandibular joint dysfunction also has been considered with respect to VA's duty to notify and assist. Given the favorable outcome noted below, no conceivable prejudice to the Veteran could result from this adjudication. See Bernard v. Brown, 4 Vet. App. 384, 393 (1993). II. Service Connection Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed.Cir.2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran seeks service connection for a temporomandibular joint disorder, which she relates to dental surgery performed in service. In a December 2009 statement she indicated that she had clicking and popping in her jaw and was constantly biting the inside of her cheek as a result of her jaw deviating to the paralyzed, right side of her face. She also complained of pain when opening her jaw, as well as numbness and sensitivity to the face. The Veteran has been assigned a separate disability rating for neuritis of the fifth cranial nerve, which will be addressed separately. The service treatment records show that the Veteran had surgery in March 1994 for mandibular retrognathia. Her primary complaint was that she had a big overbite. On her retirement physical in November 2001 the Veteran complained of numbness to the chin status post mandibular surgery. Soon after her retirement from service, the Veteran underwent a December 2001 dental examination. The Veteran's complaints of numbness in her chin after the surgery in service in 1994 were noted as a postsurgical complication. The Veteran also had a mild popping of the temporomandibular joint with no significant complaints or findings. A November 2007 VA neurology consult shows the Veteran complained of tenderness along the jaw and popping sensation when she opened and closed her mouth since oral surgery in 1994. The Veteran underwent a VA dental consult in January 2008. Her complaints of numbness of the chin area since surgery in service to correct a malocclusion were noted. She also reported tenderness in the region of the right temple and temporomandibular joint, noting several appointments with a dentist for restorations. She stated that she had to hold her mouth open for long periods and that her jaw was sore after these appointments. Objective evaluation showed good range of motion of the jaw without deflection, pop, click, or crepitus noted. There was tenderness of the right masseter noted consistent with clenching. X-rays were within normal limits for jaw and temporomandibular joint structure. A March 2010 VA examination report shows that the Veteran believed her temporomandibular joint pain and clicking was secondary to her jaw surgery in service; she also stated that she would bite her lip and cheeks frequently. The examiner diagnosed the Veteran with minor pain but found that the temporomandibular pain was not related to the oral surgery in service. The examiner also found that the cheek biting and lip biting was secondary to occlusal wear of her teeth and stress from her job exhibited by parafunctional bruxism (grinding/clenching). In May 2010, the Chief of Dental Services at the VAMC in Bay Pines examined the Veteran. It was noted that the Veteran was status post bilateral sagittal split osteotomy and presented with residual numbness and temporomandibular joint dysfunction complaints including muscles of mastication. The Veteran was diagnosed with temporomandibular dysfunction secondary to maxillofacial surgery. In June 2014 another VA physician submitted an opinion that it was more likely than not that the Veteran's current symptoms of temporomandibular joint dysfunction were a late complication of the mandibular bilateral sagittal split osteotomy, which involved a surgically induced fracture with screw fixation of both jaws. The physician cited to studies that temporomandibular joint disorders could be caused by numerous conditions and events including jaw fracture or trauma. The physician also noted that it was well-known that any bone that was surgically fractured and fixated could develop into arthritis years later. The physician commented that in the Veteran's case she had a surgically-induced fracture of the jaw with screw fixation and that it would be almost expected that difficulties would develop in later years. The physician finally noted that medical records were reviewed from the Veteran's file including the service treatment records and post-service treatment records. In addition a private dentist in August 2013 submitted an opinion that the Veteran's temporomandibular jaw dysfunction was causally related to the jaw surgery in service. The Veteran's service treatment records are consistent with the Veteran's complaints, as they show the Veteran had surgery to correct an overbite in 1994. Moreover, the Board observes that the Veteran has attested to her long-standing symptoms of pain, clicking, and numbness in the jaw, which, as a lay person, she is competent to report. Jandreau v. Nicholson, 492 F.3d 1372 (2007) (lay evidence can be competent to establish diagnosis of a condition when a layperson is competent to identify the medical condition, or reporting a contemporaneous medical diagnosis, or the lay testimony describing symptoms supports a later diagnosis by a medical professional). Further, the Board considers the Veteran's assertions of a continuity of symptoms in her jaw in since service to be credible in the absence of any probative evidence expressly negating those assertions. See Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006) (finding that lay evidence concerning continuity of symptoms after service, if credible, is ultimately competent, regardless of the lack of contemporaneous medical evidence). In addition, several physicians, including the Chief of Dental Services of the VAMC in Bay Pines, examined the Veteran and determined that the Veteran's current temporomandibular jaw dysfunction was related to her dental surgery in service with supporting rationales. The negative opinion provided in March 2010 is accorded no probative value, as a rationale was not provided for why the Veteran's current temporomandibular jaw dysfunction was not related to her dental surgery in service. "Neither a VA medical examination report nor a private medical opinion is entitled to any weight in a service-connection or rating context if it contains only data and conclusions [without reasoning or rationale]." Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 304 (2008). The medical evidence establishes that the Veteran had surgery to her jaw in service, has experienced pain and clicking in her jaw since service, and was diagnosed as having temporomandibular joint dysfunction, secondary to her dental surgery in service. Thus, following a full review of the record, and applying the benefit of the doubt doctrine, all doubt is resolved in favor of the Veteran. See 38 C.F.R. § 3.102. Therefore, the Veteran's claim for service connection for temporomandibular joint dysfunction is granted. II. Increased Rating for Dry Eye Syndrome Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Although the Veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection 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. Francisco v. Brown, 7 Vet. App. 55 (1994). The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. Under the anti-pyramiding provision of 38 C.F.R. § 4.14 , the evaluation of the "same disability" or the "same manifestation" under various diagnoses is to be avoided. The Court held, in Esteban v. Brown, 6 Vet. App. 259 (1994), that for purposes of determining whether the appellant is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with, the symptomatology of the other conditions. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the current diagnosis and demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The RO granted service connection for dry eye syndrome in a July 2003 rating decision assigning a noncompensable (0 percent rating). The Veteran filed her present increased rating claim in June 2008. She noted on her September 2009 VA Form 9 that she had persistent dryness, callous formations, and blurred vision as a result of her eye disability. In the June 2010 Travel Board hearing, the Veteran testified that she had to use drops in her eyes to keep them moist or she would experience a "gritty" feeling. See, e.g., June 2010 Board hearing transcript, p. 29. She also indicated that she had blurred vision and constant, rapid blinking. Id. at 33. The Veteran is currently in receipt of a 0 percent disability rating for dry eye syndrome under 38 C.F.R. § 4.84a, Diagnostic Code 6001, which pertains to keratitis, an inflammation of the eye's cornea. The Rating Schedule does not contain a specific diagnostic code for dry eye syndrome. However, where an unlisted condition is encountered it is permissible to rate it under a closely related disease or injury, in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2014). In this case, the AOJ determined that the most closely analogous diagnostic code was 38 C.F.R. § 4.84a, Diagnostic Code 6001. The Board notes that the medical evidence in this case supports the Veteran's contention that her dry eye pathology causes dryness of the eye with occasional blurred vision. Thus, the Board finds that the RO's selection of diagnostic code is appropriate. During the pendency of the appeal, the criteria for rating eye disabilities changed. However, because the Veteran filed her claim prior to December 10, 2008, the appeal will be considered under the former criteria. 73 Fed. Reg. 66543 (Nov. 10, 2008). Under the applicable former version of Diagnostic Code 6001, keratitis (inflammation of the cornea), in chronic form, is to be rated from 10 percent to 100 percent for impairment of visual acuity or field loss, pain, rest-requirements, or episodic incapacity. An additional 10 percent is combined during the continuance of active pathology and 10 percent is the minimum evaluation during active pathology. 38 C.F.R. § 4.84a, Diagnostic Code 6001 (2008). Impairment of visual acuity is rated under Diagnostic Codes 6061 to 6079. 38 C.F.R. § 4.84a. In rating impairment of visual acuity, the best distant vision obtainable after best correction by glasses will be the basis of rating, except 1) in cases of keratoconus in which contact lenses are medically required, or 2) if there exists a difference of more than 4 diopters of spherical correction between the two eyes. 38 C.F.R. § 4.75. In this case, however, there is no evidence indicating that the Veteran has been diagnosed with keratoconus, or that there is a difference of more than 4 diopters of spherical correction between her two eyes. See, e.g., May 2009 VA examination report. Accordingly, the best distant vision obtainable after best correction by glasses will be the basis of his visual acuity rating. A noncompensable rating is assigned if corrected visual acuity is 20/40 or better in both eyes. 38 C.F.R. § 4.84a , Diagnostic Code 6079. A 10 percent rating is assigned for vision of either 20/40 or 20/50 in one eye and 20/50 in the other, or vision of 20/40 in one eye and 20/70 or 20/100 in the other. 38 C.F.R. § 4.84a , Diagnostic Code 6078. A 20 percent evaluation is assigned for vision of 20/70 in one eye and 20/50 in the other, or vision of 20/100 in one eye and 20/50 in the other. 38 C.F.R. § 4.84a , Diagnostic Code 6078. A 20 percent evaluation is also assigned for vision of 20/200 in one eye and 20/40 in the other, or vision of 15/200 in one eye and 20/40 in the other. 38 C.F.R. § 4.84a , Diagnostic Code 6077. Higher disability ratings are available for additional loss of visual acuity. 38 C.F.R. § 4.84a, Diagnostic Codes 6061-6077. Impairment of visual field is rated under 38 C.F.R. § 4.84a, Diagnostic Code 6080. Measurement of the visual field will be made when there is disease of the optic nerve or when otherwise indicated. 38 C.F.R. § 4.76. Under 38 C.F.R. § 4.76a, Table III, the normal visual field extent at the 8 principal meridians is: temporally: 85 degrees; down temporally: 85 degrees; down: 65 degrees; down nasally: 50 degrees; nasally: 60 degrees; up nasally: 55 degrees; up: 45 degrees; and up temporally: 55 degrees. The total is 500 degrees. The extent of visual field contraction in each eye is determined by recording the extent of the remaining visual fields in each of the eight 45 degree principal meridians. 38 C.F.R. § 4.76a. The number of degrees lost is determined at each meridian by subtracting the remaining degrees from the normal visual fields given in 38 C.F.R. § 4.76a , Table III. The degrees lost are then added together to determine the total number of degrees lost, which are subtracted from 500. The total remaining degrees of the visual field are then divided by eight to represent the average contraction for rating purposes. 38 C.F.R. § 4.76a. Under Diagnostic Code 6080, a 10 percent rating is assigned for concentric contraction of the visual field to 60 degrees, but not to 45 degrees, unilaterally; concentric contraction of the visual field to 30 degrees, but not to15 degrees, unilaterally; loss of the nasal half of the visual field unilaterally; or loss of the temporal half of the visual field unilaterally. A 20 percent rating is assigned for concentric contraction of the visual field to 60 degrees, but not to 45 degrees, bilaterally; concentric contraction of the visual field limited to 15 degrees, but not to 5 degrees, unilaterally; or loss of the nasal half of the visual field bilaterally. Higher disability ratings are available for additional loss of the visual field. 38 C.F.R. § 4.84a , Diagnostic Code 6080. Where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2014). Service and VA treatment records include diagnoses of bilateral dry eye syndrome and pinguecula. A June 2008 VA treatment record notes that visual acuity was 20/20. The Veteran complained that the plug in her left eye had fallen out. She was not improved with tears, ointments, or plugs. A July 2008 VA treatment report noted that no keratopathy was seen upon examination. A May 2009 VA examination report shows the Veteran's complaints of progressively worse dry eyes, in that the eyes were more granular in appearance of the last couple years. Current treatments included eye drops and ointment. On objective evaluation the Veteran had slight blurring in distance and near vision. There were no periods of incapacitation due to eye disease; and the Veteran's corrected vision was 20/20. Funduscopic examination was normal. Visual field was full. Examination of the sclera and conjunctiva showed pinguecula in both eyes, nasally. Lacrimal duct function was normal. There was no eye disease currently active. A March 2012 VA examination report shows diagnoses of dry eye syndrome and pinguecula. The Veteran currently reported using tears, three times a day, Restasis two times a day, hot compresses, doxycycline daily, and lubricating ointment at night. Symptoms since active duty included light sensitivity, grittiness, and blurriness. Visual acuity was corrected to 20/40 or better. The Veteran did not have a difference equal to two or more lines on the Snellen test type chart or its equivalent between distance and near corrected vision, with near vision being worse. Also, the lens required to correct distance vision in the poor eye did not differ more than three diopters from the lens required to correct distant vision in the better eye. The fundus was normal and the visual field had no defect. The Veteran did not have contraction of a visual field or loss of a visual field. The Veteran had conjunctivitis and pinguecula; but they were not inflamed in appearance on examination. There was no decrease in visual acuity or other visual impairment. The examiner determined that the Veteran had dry eye/ tear film deficiency in both eyes without any evidence of "keratopathy" or keratitis (no corneal damage secondary to her dry eye/ tear film deficiency) in both eyes. There was no scarring or disfigurement attributable to any eye condition; and there had been no incapacitating episodes attributed to any eye condition. The examiner also noted that a May 2011 VA eye examination showed pinguecula and dry eye/ tear film deficiency noted in both eyes without keratopathy/ keratitis or conjunctivitis. The Board finds that an increased disability rating of 10 percent is warranted for the Veteran's service-connected dry eye syndrome, based on the presence of active pathology, including dryness and blurred vision. A higher rating is not warranted for impairment of visual acuity or field loss, pain, rest-requirements or episodic incapacity. As demonstrated on examination, the Veteran has normal corrected visual acuity and normal field vision. See 38 C.F.R. § 4.75 (visual acuity determined on basis of best distant vision obtainable after best correction). Additionally, the Veteran has not reported episodic incapacity or rest-requirements. Any symptoms of blurred vision and dryness, as well as grittiness and light sensitivity have already been considered in the rating for active pathology. Consequently, a 10 percent rating, but no higher, is warranted for the Veteran's bilateral eye condition. The level of impairment has been relatively stable throughout this rating period, and symptomatology has not been worse at any point during the appeal period than what has been discussed above. Therefore, the application of staged ratings is inapplicable. See Hart v. Mansfield, 21 Vet. App. 505 (2007) . Therefore, the Veteran is entitled to an increased disability rating of 10 percent for dry eye syndrome, but no higher. To the extent that any further increase is denied, the preponderance of the evidence is against the assignment of an increased rating higher than 10 percent, and the benefit of the doubt rule is not for application. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). An inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) also has been considered. The March 2012 VA examination report noted that inside work would not be prevented by the Veteran's eye disability, though outside work would not be recommended. Therefore, any inferred TDIU claim is inapplicable in this case. III. Extraschedular Rating The rating schedule represents as far as is practicable, the average impairment of earning capacity. Ratings will generally be based on average impairment. See 38 C.F.R. § 3.321(a), (b) (2014). To afford justice in exceptional situations, an extraschedular rating can be provided. See 38 C.F.R. § 3.321(b). The Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted in 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 service-connected 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 C&P Service to determine whether, to accord justice, the veteran's disability picture requires the assignment of an extraschedular rating. The symptoms associated with the Veteran's dry eye syndrome (i.e., dry eyes, grittiness, blurred vision, light sensitivity) are not shown to cause any impairment that is not already contemplated by the rating criteria. The 10 percent rating assigned under Diagnostic Code 6001 contemplates active pathology. To the extent that the findings of pinguecula and conjunctivitis are related to the Veteran's eye disability, these findings also would be considered under active pathology under Diagnostic Code 6001. The Board finds that these rating criteria reasonably describe the Veteran's disability; and even if they did not, there is no evidence of frequent periods of hospitalization or marked interference with employment as a result of the Veteran's service-connected eye disability. For these reasons, referral for consideration of an extraschedular rating is not warranted for this claim. ORDER Entitlement to service connection for temporomandibular joint disorder is granted. Entitlement to an increased rating of 10 percent, but no higher, for dry eye syndrome is granted, subject to the rules governing the payment of monetary benefits. REMAND The Veteran seeks a compensable rating for right fourth hammertoe with non-tender scar. Her right fourth hammertoe disability is rated by analogy under 38 C.F.R. § 4.71a, Diagnostic Code 5284 for other foot injuries. She has separate ratings assigned for bilateral hammertoe deformities with residual metatarsalgia with 10 percent ratings assigned for each foot. These ratings are not on appeal. The record shows the Veteran also has diagnoses pes planus and plantar fasciitis. See, e.g., October 2007 VA examination report; August 2014 podiatry outpatient treatment note. However, it is not clear if these findings are related to the right fourth hammertoe with non-tender scar. Thus, additional examination is warranted before the Veteran's claim can be resolved. An April 2015 VA examination report also shows findings pertaining to the feet, including a painful scar on the right fourth metatarsal. However, there is no record of RO review of this evidence as it pertains to the Veteran's present appeal. In addition the RO has not reviewed the August 2014 VA podiatry note in terms of the Veteran's increased rating claim for right fourth hammertoe deformity with scar. For these reasons a remand is warranted. With respect to the Veteran's claim for entitlement to service connection for a low back disability, including sciatic nerve involvement and a right hip disorder to include as secondary to a service-connected disability, the Veteran has complained of chronic back pain since service. The service treatment records also document several instances of complaints of back pain. The Veteran was provided with a VA examination in March 2012 to address the etiology of her back disability. The examiner noted that she only had conservative treatment for muscle spasm in September 1993 and that although the Veteran complained of chronic, persistent back pain radiating to the lower extremity since basic training in 1991, there was no medical evidence to support the Veteran's complaints. The service treatment records actually show additional complaints of back pain. In addition to the September 1993 finding of muscle spasm in the back secondary to motor vehicle accident, as noted by the examiner, a September 1994 treatment record notes complaints of increased back pain since pregnancy. A July 1999 treatment record also notes complaints of soreness in the lower back. In May 2001, the Veteran complained of pain in the right neck and back. The examiner did not consider these additional complaints of back pain documented in the record, nor assign any probative value to the Veteran's competent complaints of back pain since service, notwithstanding whether or not she sought treatment. In addition, while noting that the Veteran's back disability was more likely associated with the aging process, the examiner did not offer any rationale for the opinion that the Veteran's back disability was not aggravated by her service-connected disabilities. For these reasons a supplemental opinion is warranted to address the Veteran's service connection claim for a back and right hip disability. Following the Board's remand, the Veteran perfected her appeal of the issue of an increased rating for service-connected neuritis of the fifth cranial nerve. In her August 2013 VA Form 9 dated in August 2013 and located in VBMS, the Veteran requested a Board hearing on this issue. However, while it appears that the RO acknowledged such request, it does not appear that the Veteran was afforded the requested hearing. Further, it is not clear from the record whether the Veteran still wishes to have a Board hearing on this issue or whether she has withdrawn this request as no further reference is found in the record to this request. This should be clarified on remand. Accordingly, the case is REMANDED for the following action: 1. If the Veteran has withdrawn her request for a Board hearing on the issue of her claim for an increased rating for neuritis of the fifth cranial nerve, such documentation should be associated with the record. See, e.g., November 2013 RO letter; November 2013 RO Memorandum. If no such documentation exists, contact the Veteran and determine whether she still wishes to have a Board hearing on this issue. If so, schedule the Veteran for the next available Travel Board or Board video conference hearing at her local VA Regional Office as soon as practicable with respect to her increased rating claim for neuritis of the fifth cranial nerve. Both she and her representative should be notified of the date, time, and location of the hearing 2. Make arrangements to obtain treatment records pertaining to the feet and/ or back from the VAMC in Tampa dated from January 2009 to present. 3. Following the completion of the above development, return the claims file to the examiner who provided the March 2012 VA spine examination, if available. If the previous examiner is not available, then reschedule the Veteran for another VA spine examination to determine the nature and etiology of the Veteran's back disability. The examiner should review the claims folder and note such review in the examination report. The examination should include a review of the Veteran's history and current complaints as well as a comprehensive evaluation and any tests deemed necessary. The examiner also should provide an opinion as to the following: (a) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's back disability with sciatica and right hip disorder was incurred in or related to any event disease, or injury in service, including the documented complaints of back pain in the service treatment records in 1993, 1999, and 2001, and the Veteran's competent complaints of continued back pain (notwithstanding any documented treatment) since basic training in 1991. (b) Whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's back disability with sciatica and right hip disorder was caused, or alternatively, aggravated (permanently worsened) by the Veteran's service-connected feet and toe disabilities? If the back disability was aggravated by the Veteran's service-connected feet/toe disabilities, then please state to the extent possible the baseline level of severity of the back disability before the onset of any aggravation. Note: The term "at least as likely as not" does not mean merely within the realm of medical possibility, but rather that the weight of medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of causation as it is to find against it. The examiner is advised that the Veteran is competent to report her symptoms and her reports must be considered in formulating the requested opinion. If the Veteran's reports are discounted, the examiner should provide a rationale for doing so. A complete rationale for any opinion expressed must be provided. If an opinion cannot be expressed without resort to speculation, discuss why this is the case. In this regard, indicate whether the inability to provide a definitive opinion is due to a need for further information or because the limits of medical knowledge have been exhausted regarding the etiology of the disability at issue or because of some other reason. 4. Schedule the Veteran for the appropriate VA examination to address the impairment associated with the right fourth hammertoe disability with scar. The claims folder should be made available to and reviewed by the examiner. All necessary tests should be performed. The examiner should identify and describe in detail all residuals attributable to the Veteran's service-connected right fourth hammertoe disability, including whether there is any impairment associated with the scarring, whether the scars are adherent to underlying tissue, whether the scars are tender to palpation or unstable, and the approximate measurements of the scars. The examiner should also provide an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's pes planus and/ or plantar fasciitis are related to the Veteran's service-connected right fourth hammertoe deformity with scar. In answering these questions, please consider the Veteran's assertions that her right fourth toe disability causes pain while walking. Also, the examiner is advised that the Veteran is competent to report her symptoms and her reports must be considered in formulating the requested opinion. If the Veteran's reports are discounted, the examiner should provide a rationale for doing so. The examiner must provide a comprehensive report including complete rationale for all opinions and conclusions reached, citing the objective medical findings leading to the conclusions. 5. Next, review the medical opinions obtained above to ensure that the remand directives have been accomplished. If all questions posed are not answered or sufficiently answered, return the case to the examiner(s) for completion of the inquiry. 6. Readjudicate the claims on appeal with consideration of any additional evidence added to the file since the last October 2012 SSOC, including an April 2015 VA examination report showing a painful scar on the right fourth toe. If any of the benefits remain denied, issue the Veteran and her representative a Supplemental Statement of the Case and allow for a reasonable period to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs