Citation Nr: 1017403 Decision Date: 05/11/10 Archive Date: 05/26/10 DOCKET NO. 06-36 054 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for temporomandibular joint dysfunction. 2. Entitlement to service connection for fibromyalgia/myofascial pain syndrome. 3. Entitlement to a compensable evaluation for rhinitis/sinusitis for the period prior to August 9, 2005, and to a rating higher than 10 percent for rhinitis/sinusitis, from August 9, 2005, forward, on appeal from the initial determination. 4. Entitlement to a compensable evaluation for hemorrhoids for the period prior to August 9, 2005 and to a rating higher than 10 percent for the period from August 9, 2005, forward, on appeal from the initial determination. 5. Entitlement to a compensable evaluation for scars resulting from treatment for service connected breast cancer, status post bilateral mastectomy with implants, for the period prior to August 9, 2005, and to a rating higher than 10 percent from August 9, 2005, forward; on appeal from the initial determination. 6. Entitlement to a compensable evaluation for gastroesophageal reflux disease (GERD), on appeal from the initial determination. 7. Entitlement to a compensable evaluation for left big toe bunion, also hallux valgus left big toe. 8. Entitlement to a compensable evaluation right big toe bunion, also hallux valgus right big toe. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD J.G. Reinhart, Counsel INTRODUCTION The veteran served on active duty from August 1984 to August 2004. This matter comes to the Board of Veterans' Appeals (Board) on appeal from December 2004 and April 2006 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In the December 2004 decision, the RO granted service connection for recurring rhinitis and sinusitis and assigned a noncompensable evaluation. The remainder of the issues on appeal arose from the April 2006 decision. In October 2007, the veteran testified at a personal hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In the INTRODUCTION of the January 2008 REMAND, the Board stated as follows: During the October 2007 hearing, and in a letter submitted in July 2007, the veteran indicated that she wished to file a claim for osteopenia as secondary to tamoxifen treatment, chemotherapy, and hysterectomy. See e.g. Hearing transcript at 8. This is referred to the RO for appropriate action. A review of the claims file fails to show that, more than two years after the document containing that statement was issued, any action has been taken on the referral of a claim for service connection for osteopenia. Hence, again, the Board refers to the RO, or the AMC as the case may be, a claim for service connection for osteopenia. At the outset, the Board notes that the Veteran's service records show her to be a medical doctor. To avoid confusion, the Board refers to the Veteran throughout this decision and remand as "the Veteran" and practitioners who have treated or examined her, as "physician", "examiner", or "Dr." The issues of entitlement to service connection for temporomandibular joint dysfunction and for a higher rating for rhinitis/sinusitis are addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran currently has fibromyalgia which had onset during active service. 2. Prior to August 9, 2005, the Veteran's hemorrhoids were not large or thrombotic, did not result in anemia, did not result in persistent bleeding, did not result in fissures, and did not resulted in constant impairment of sphincter control or even occasional moderate leakage. 3. Since August 9, 2005 the Veteran's hemorrhoids have not been both large or thrombotic with excessive redundant tissue and irreducible; have not resulted in persistent bleeding, have not resulted in anemia, have not resulted in fissures, and have not resulted in constant impairment of sphincter control or even occasional moderate leakage. 4. The Veteran has at least one painful scar related to her breast cancer since separation from active service. 5. The Veteran filed her claim for service connection for residuals of breast cancer prior to separation from active service on August 31, 2004. 6. Since June 2008 the Veteran has had three painful service connected scars related to her breast cancer. 7. The Veteran's GERD results in regurgitation and dysphagia but does not result in persistent epigastric distress with pyrosis, productive of considerable impairment of health. 8. Prior to April 6, 2007, the Veteran had not undergone resection of the metatarsal head of the left big toe, her hallux valgus of the left big toe was not so severe as to be equivalent to amputation of the toe, and her left big toe bunion, with hallux valgus left big toe was not analogous to a moderate foot injury. 9. On April 6, 2007 the Veteran underwent resection of the metatarsal head of the left big toe; and since April 6, 2007 the Veteran's left big toe bunion, with hallux valgus left big toe has not been analogous to a moderately severe foot injury. 10. Prior to April 6, 2007, the Veteran had not undergone resection of the metatarsal head of the right big toe, her hallux valgus of the right big toe was not so severe as to be equivalent to amputation of the toe, and her right big toe bunion, with hallux valgus right big toe was not analogous to a moderate foot injury. 11. On April 6, 2007 the Veteran underwent resection of the metatarsal head of the right big toe; and since April 6, 2007 the Veteran's right big toe bunion, with hallux valgus right big toe has not been analogous to a moderately severe foot injury. CONCLUSIONS OF LAW 1. The criteria for service connection for fibromyalgia have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009). 2. Prior to August 9, 2005, the criteria for a compensable evaluation for hemorrhoids were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.114 Diagnostic Codes 7332, 7336 (2009). 3. From August 9, 2005, forward, the criteria for a rating higher than 10 percent disabling for hemorrhoids have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.114 Diagnostic Codes 7332, 7336 (2009). 4. The criteria have been met for an effective date of September 1, 2004 for a 10 percent disability rating for scars resulting from treatment for service connected breast cancer, status post bilateral mastectomy with implants,. 38 U.S.C.A. §§ 5110 (West 2002); 38 C.F.R. § 3.400 (2009). 5. From October 23, 2008, forward, the criteria for a 20 percent disability rating, but no higher; have been met for scars resulting from treatment for service connected breast cancer, status post bilateral mastectomy with implants. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.118 Diagnostic Codes 7801-7805 (2009). 6. The criteria for a 10 percent disability rating, but no higher; have been met for GERD. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.114 Diagnostic Code 7346 (2009). 7. Prior to April 6, 2007, the criteria for a compensable evaluation for left big toe bunion, with hallux valgus left big toe were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.71a Diagnostic Codes 5280, 5284 (2009). 8. From April 6, 2007 forward, the criteria for a 10 percent disability rating, but no higher, have been met for left big toe bunion, with hallux valgus left big toe. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.71a Diagnostic Codes 5280, 5284 (2009). 9. Prior to April 6, 2007, the criteria for a compensable evaluation for right big toe bunion, with hallux valgus right big toe were not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.71a Diagnostic Codes 5280, 5284 (2009). 10. From April 6, 2007 forward, the criteria for a 10 percent disability rating, but no higher, have been met, for right big toe bunion, with hallux valgus right big toe. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1-4.7, 4.71a Diagnostic Codes 5280, 5284 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The claims that are the subject of the instant adjudication by the Board were remanded to the RO via the AMC for additional development in January 2008. As the requested development was properly completed, the Board will proceed with this adjudication. See Stegall v. West, 11 Vet. App. 268 (1998). Service connection Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110 (West 2002); 38 C.F.R. § 3.303(a) (2008). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2009). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in- service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In January 2006, the Veteran filed a claim for service connection for myofascial pain syndrome/fibromyalgia. During a February 2006 examination, provided by VA through QTC Medical Services, the Veteran reported that she has suffered from this condition since 2003. In her January 2006 Notice of Disagreement, the Veteran reported that fibromyalgia started and was triggered by traumatic events related to her diagnosis of breast cancer and treatment for that disease. Service treatment notes document that the Veteran underwent surgical and chemotherapy treatment for breast cancer in 2002-2003. Notes from March 2003 document that she suffered symptoms from treatment for that disease with Tamoxifen. In February 2006 the Veteran underwent an examination provided to her by VA through QTC Medical Services. She described her condition as fibromyalgia consisting of easy fatigue, headache, sleep disturbance, stiffness in the morning, anxiety, depression, hot flashes and sweating more than two third of the time per year. She reported that these symptoms were precipitated by emotional stress, drastic change in temperature, extreme cold, extreme heat, and overexertion. She reported that she felt fatigued all of the time. Physical examination yielded a diagnosis of fibromyalgia; the examiner essentially repeated what the Veteran had told him as far as symptoms and included objective examination findings of "muscular tender points." In June 2008 the Veteran underwent a VA examination. The examiner reviewed the service treatment records and stated that the records provided no objective documentation of fibromyalgia. He noted her medical history including her report that she described pain as trigger points in the trapezium muscles. She reported her belief that the pain was precipitated by stress from advancement in rank. She also reported that the pain in her trapezium muscles increased when she learned of the diagnosis of breast cancer in 2002. The Veteran reported that following chemotherapy treatment she developed pain distinct from the earlier pain and reported receiving trigger point botox injections as treatment. She also reported trigger points in the buttocks and posterior thighs which she stated improved with Paxil. Physical examination revealed tense trapezium muscles and trigger points in the area between the scapular spines and the vertebral spines which the physician stated involving the trapezoid muscle. She also was found to have trigger points in the buttocks and mid posterior thighs. The examiner diagnosed fibromyalgia "at least as likely beginning in the military but unfortunately undocumented because of the veteran's self treatment and self diagnosis." He also opined that the fibromyalgia worsened due to the stress of the military including advancement in rank and diagnosis of and treatment for breast cancer. Service connection is warranted for fibromyalgia. The Veteran, who is a physician, diagnosed fibromyalgia as having onset during service. She is competent to render such diagnosis and the record does not indicate that she is other than credible with regard to this matter. The Board knows of no rule that the Veteran must have reported the symptoms during service in order to establish onset of symptoms during service. Here, she has provided credible evidence that she had the symptoms described during and since service. Her medical opinion, as well as the examiner's, establishes that she currently has fibromyalgia and that her current fibromyalgia had onset during service. Hence, service connection must be granted for fibromyalgia. Increased ratings -Schedular Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding the Veteran's increased evaluation claims, the Board has considered whether separate ratings are warranted based on facts found for separate periods of time on appeal, a process known as "staging the ratings." Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Hemorrhoids A DD 214 is of record showing that the Veteran was separated from active service on August 31, 2004. On August 9, 2005, the RO received her claim for service connection for disability resulting from hemorrhoids. In April 2006 the RO granted service connection for hemorrhoids and assigned a noncompensable rating, effective September 1, 2004, the day after the date that she was separated from active service. The Veteran timely appealed that rating. In an April 2009 rating decision the AMC granted a 10 percent rating for this disability, assigning an effective date of August 9, 2005. The AMC explained its choice of an effective date as the date of a VA examination documenting the level of disability. The Board has reviewed the claims file but finds no examination of any sort, for hemorrhoids or otherwise, dated August 9, 2005. However, as explained below, examination conducted in 2006 showed that disability from the Veteran's hemorrhoids did not meet the schedular criteria for a compensable rating, thus rendering meaningless any error on the AMC's part as to an August 9, 2005 examination. Mild or moderate internal or external hemorrhoids are assigned a noncompensable rating. 38 C.F.R. § 4.114, Diagnostic Code 7336. Large or thrombotic hemorrhoids, irreducible, with excessive redundant tissue, evidencing frequent recurrences, are rated 10 percent disabling. Id. Hemorrhoids with persistent bleeding and with secondary anemia, or with fissures, are rated 20 percent disabling. Id. Also considered by the Board are ratings for impairment of sphincter control with regard to the rectum and anus. Healed or slight impairment of sphincter control, without leakage, is rated as noncompensable. 38 C.F.R. § 4.114, Diagnostic Code 7332. Constant slight impairment of sphincter control, or occasional moderate leakage, is rated 10 percent disabling. Id. Impairment of sphincter control with occasional involuntary bowel movements, necessitating wearing of pad, is rated 30 percent disabling. Id. Impairment of sphincter control resulting in extensive leakage and fairly frequent involuntary bowel movements are rated 60 percent disabling. Id. Complete loss of sphincter control is rated 100 percent disabling. Id. The first evidence going to these rating criteria is the report of QTC Medical Services examination in February 2006 documenting that the Veteran had a small hemorrhoid that was not reducible. There was no evidence of bleeding, thrombosis, significant anemia, or malnutrition. This report therefore is evidence against assigning a compensable rating for hemorrhoids. Medical history taken during the June 2008 VA examination included the Veteran's report that her last blood work showed no anemia. She reported that she had no diarrhea and no involuntary bowel movements but that she did have fecal leakage requiring her to clean herself frequently with baby wipes, especially after bowel movements. She does not wear a pad. She reported bleeding once per month as noted on toilet tissue, that she has not had thrombosis of hemorrhoids since discharge from the military. She had not had a history of rectal bleeding, anal infection, or fistula in ano. As to the pain on bowel movement she reported that this was at a level 5 out of a possible 10 but was reduced to level 3 out of 10 by self reducing her hemorrhoids. Physical examination revealed evidence of fecal leakage on the skin. Digital rectal examination revealed internal hemorrhoids. There were no fissures but there was excoriation of the left lateral internal external hemorrhoidal group. There was no full rectal prolapse but there was prolapse of the internal and external hemorrhoids groups circumferentially. There was no evidence of bleeding and no signs of anemia. The examiner stated that there was markedly redundant tissue. The examiner diagnosed large protruding, reducible, circumferential internal and external hemorrhoids with beefy red excoriation of the anoderm of the left lateral group. He stated that the Veteran's hemorrhoids are large, not thrombotic, not irreducible, and that there was excessive redundant tissue. The 10 percent rating for hemorrhoids requires that the hemorrhoids be large or thrombotic, irreducible, with excessive redundant tissue, evidencing frequent recurrences. "Large or thrombotic" are disjunctive criterion but are conjunctive when considered with the remaining criteria. Although the examiner in 2006 stated that the Veteran's hemorrhoid was not reducible, he also found no thrombosis and stated that the hemorrhoid was small. The examiner in 2008 found the Veteran to have large hemorrhoids with excessive redundant tissue but he also found that the hemorrhoids were not irreducible. The Veteran indicated that pain was lessened by self reduction of her hemorrhoids. The examination also revealed no bleeding and the Veteran's description of bleeding could not be described as persistent. She has not been anemic and fissures have never been found. Hence, all evidence of record is against assigning ratings higher than have already been assigned under Diagnostic Code 7336. Similarly, her description of having to clean herself frequently with baby wipes, particularly after bowel movements, is not a description of constant impairment of sphincter control or occasional moderate leakage. The evidence of record, overall, is against assigning a compensable rating under the criteria found at Diagnostic Code 7336. Therefore, the appeal as to the ratings assigned for hemorrhoids must be denied. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2009). Scars In March 2004, prior to her release from active service, the Veteran filed a claim for VA disability benefits for breast cancer. Service connection was granted in the December 2004 rating decision for breast cancer, status post bilateral mastectomy with implants. In March 2005, the Veteran filed a notice of disagreement with that decision, indicating that she had tender scars. In an April 2006 rating decision, the RO granted a noncompensable evaluation for scars residual of a double mastectomy and for scar, right arm, residual of chemotherapy. The Veteran filed a timely appeal of those noncompensable ratings in June 2006. In an April 2009 rating decision, the AMC assigned a 10 percent rating for scars resulting from treatment for service connected breast cancer, status post-bilateral mastectomy with implants. The AMC assigned an effective date for this disability rating of August 9, 2005; explaining this date as the date of the Veteran's claim. The date of the Veteran's claim was not August 9, 2005. It was March 2004. August 9, 2005 was the date that she disagreed with the initial adjudication of her claim. Her claim in March 2004 was for "breast cancer." This claim, of course, included all disability resulting from her inservice breast cancer. The effective date of an award of disability compensation to a veteran shall be the day following the date of the veteran's discharge or release if application therfor is received within one year from such date of discharge or release. 38 U.S.C.A. § 5110(b)(1); 3.400(b)(2) (2009). As explained by the Board in the discussion which follows, a 10 percent rating is warranted for a painful scar or scars based on the earliest evidence of record and the Veteran's statements and actions indicate to the Board that she has had at least one painful scar since prior to separation from active service. Hence, the grant of 10 percent for painful scars is warranted from the day following separation from active service. In this case, that date is September 1, 2004. The Board now turns to the law and evidence pertinent to the ratings assigned for her scars. During the course of the Veteran's appeal, VA revised the rating criteria for evaluating scars, effective October 23, 2008. See 73 Fed. Reg. 54710 (October 23, 2008). Generally, where the rating assigned is on appeal and the rating criteria have been amended during the course of the appeal, the Board considers both the former and the current schedular criteria because, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991), to the extent it held that, where a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version more favorable to appellant should apply). See also VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 3-2000 (April 10, 2000). At the time the Veteran filed her claim, scars of other than the head, face, or neck that are deep or that cause limited motion were rated 10 percent disabling if involving an area or areas exceeding 6 square inches (39 sq. cm.); 20 percent disabling if involving an area or areas exceeding 12 square inches (77 sq. cm.); 30 percent disabling if involving an area or areas exceeding 72 square inches (465 sq. cm.); and 40 percent disabling if involving an area or areas exceeding 144 square inches (929 sq.cm.). 38 C.F.R. § 4.118, Diagnostic Code 7801 (2007). Note (2) to Diagnostic Code 7801 provides that a deep scar is one associated with underlying soft tissue damage. Id. At the time the Veteran filed her claim, superficial scars of other than the head, face or neck, which did not cause limited motion, were 10 percent rating of areas or areas of 144 square inches or greater, or painful on examination, or unstable. 38 C.F.R. § 4.118, Diagnostic Code 7802, 7803, 7804 (2007). Effective in October 2008, deep nonlinear scars of other than the head, face, or neck are rated 10 percent disabling if involving an area or areas at least 6 square inches (39 sq. cm.) but less than 12 square inches (77 sq. cm.); 20 percent disabling if involving an area or areas at least 12 square inches (77 sq. cm.) but less than 72 square inches (456 sq. cm.); 30 percent disabling if involving an area or areas at least 72 square inches (465 sq. cm.) but less than 144 square inches (929 sq. cm.); and 40 percent disabling if involving an area or areas of 144 square inches (929 sq.cm.) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2009). Note (2) was added under Diagnostic Code 7801, providing that if multiple qualifying scars are present, or if a single qualifying scar affects more than one extremity, or a single qualifying scar affects one or more extremities and either the anterior portion or posterior portion of the trunk, or both, or a single qualifying scar affects both the anterior portion and the posterior portion of the trunk, assign a separate evaluation for each affected extremity based on the total area of the qualifying scars that affect that extremity, assign a separate evaluation based on the total area of the qualifying scars that affect the anterior portion of the trunk, and assign a separate evaluation based on the total area of the qualifying scars that affect the posterior portion of the trunk. The midaxillary line on each side separates the anterior and posterior portions of the trunk. Combine the separate evaluations under § 4.25. Qualifying scars are scars that are nonlinear, deep, and are not located on the head, face, or neck. 38 C.F.R. § 4.118, Diagnostic Code 7801 (2009). Diagnostic Code 7803 was removed from the schedule and the criteria previously found under that code was incorporated into the revised Diagnostic Code 7804. Under the revised Diagnostic Code 7804, one or two scars that are unstable or painful warrant a 10 percent evaluation; three or four scars that are unstable or painful warrant a 20 percent evaluation; five or more scars that are unstable or painful warrant a 30 percent evaluation. 38 C.F.R. § 4.118 (2009). Note (2) for that code provides that if one or more scars are both unstable and painful, add 10 percent to the evaluation that is based on the total number of unstable or painful scars. Note (3) under that provides that scars evaluated under diagnostic codes 7800, 7801, 7802, or 7805 may also receive an evaluation under diagnostic code 7803, when applicable. The revised Diagnostic Code 7805 provides that other scars (including linear scars) and other effects of scars evaluated under diagnostic codes 7800, 7801, 7802, and 7804 require the evaluation of any disabling effect(s) not considered in a rating provided under diagnostic codes 7800-04 under an appropriate diagnostic code. 38 C.F.R. § 4.118 (2009) During the February 2006 examination the Veteran was found to have a scar of the right upper arm that was 3.5 cm. long and "0" cm. wide. This was sensitive. There were three scars from the left breast surgery, one 28 cm., the others 2 cm. each; all were linear. There were three scars form the right breast surgery, one 23 cm. the others 2 cm. each; all were linear. After describing the scars of the Veteran's torso, the examiner included a sentence stating that there was no tenderness, adherence, tissue loss, ulceration, or instability. There is reasonable doubt as to whether the examiner intended that the lack of tenderness be applied to all scars or just to the torso scars. The Board resolves this doubt in favor of the Veteran and finds that only the torso scars were found to be non-tender at the time of the examination. The report provides no information as to whether the scar of the Veteran's arm was unstable but all other evidence tends to show that none of her scars have ever been unstable. The examiner's statement that the scar of the right upper arm was sensitive is not particularly clear. A reasonable interpretation of the word "sensitive" is "painful on examination." Resolving reasonable doubt in favor of the Veteran, the Board finds that the scar of the Veteran's right upper arm was painful on examination and therefore a 10 percent rating is warranted for that scar. As to the scars of the Veteran's torso, the examiner indicated that there was no tenderness and that the scars were stable. The scars affect an area less than 6 square inches. Hence, this examination provides evidence against assigning a compensable rating for scars of the Veteran's torso resulting from her bilateral mastectomy. During the June 2008 examination, the Veteran provided a medical history of reported aching due to fixation of the scar to her left pectoral muscles. She reported that elevating her left arm results in a pain and that she experienced pain while typing. She also reported that she has constant ache at the point of a depression in the right subclavicular region, with shooting pain along the right second intercostal nerve. The examiner stated that the area she was referring to was an area of atrophy of the origin of the pectoralis major muscle. Pain on the right did not impair function. Physical examination revealed a 21 cm. long by 0.5 cm. wide stable deep mastectomy scar on the left with fixation to the pectoral muscle. This resulted in limitation of motion of the left shoulder to 120 degrees of forward flexion or abduction. As to the right mastectomy scar, the Veteran reported pain at the indentation in the origin of the pectoral muscle, with shooting pain upon pressure. Physical examination revealed a 23 cm. by 0.5 cm. scar of the right chest, a 2 cm. wide by 1 cm. deep indentation just inferior to the medial clavicle, this indentation increased to 3 cm. with palpation and resulted in shooting pain. The examiner stated that the scar itself was not painful. Rather, the pain is on palpation of the indentation in the medial region of the second rib. There was no adherence to underlying tissue and the scar was stable. The scar was superficial in that it was not fixed to underlying muscle but the scar is deep in that there has been atrophy of a portion of the pectoral muscle exposing the most medial branch of the right second intercostal nerve. This scar did not result in limitation of motion. The examiner diagnosed right simple mastectomy and sentinel lymph node biopsy scar, causing atrophy of the origin of the right pectoralis major muscle at the level of the second rib, and resulting intercostal nerve neuritis. Diagnostic Codes 7801 and 7802 are not for application because the areas of the Veteran's service connected scars sum to less than 39 sq. cm. None of the scars are unstable so Diagnostic Code 7803 is not for application. As to the limitation of motion of the Veteran's left shoulder, resulting from the mastectomy scar, the Board has considered the criteria found at 38 C.F.R. § 4.71a, Diagnostic Code 5201 which provides for a 20 percent rating for limitation of the arm at shoulder level and either or 20 or 30 percent rating for limitation of the arm to 25 degrees from the side (depending on whether it is the major or minor side). Here, the motion becomes painful at 120 degrees, which is above shoulder level. Hence a compensable rating is not available for limitation of function of the affected part under 38 C.F.R. § 4.118, Diagnostic Code 7805. Given these findings of neuritis and muscle atrophy, the Board has considered whether application of criteria for muscle injuries or neurological disability would be more appropriate to rate the disability resulting from the Veteran's right mastectomy scar. There are no neurological criteria addressing the intercostal nerve. The atrophy of the pectoral muscle could not be considered more than a slight muscle injury and would therefore be noncompensable under 38 C.F.R. § 4.73, Diagnostic Code 5303, which addresses the pectoral muscle. Although the scars of the Veteran's torso may not be themselves painful it is the scars that result in her pain on both sides. She clearly has disability due to each of her scars of the torso. Whether it is the scar itself that is painful or the pain is of another structure but caused by the scar is, to the Board, a distinction without a difference. The Board considers pain on the left and right, whether due to motion or to neuritis, caused by each scar to be appropriately rated by analogy under Diagnostic Code 7804 for painful scars. The Board finds that separate ratings are not warranted under the version of Diagnostic Code 7804 in place prior to the revision effective October 23, 2008. Prior to the revision, only Diagnostic Code 7802 provided that scars in widely separated areas, as on two or more extremities or on anterior and posterior surfaces of extremities or trunk, will be separately rated and combined in accordance with 38 C.F.R. § 4.25 (2009). See Note (1) to Diagnostic Code 7802. There is no such notation under Diagnostic Code 7804. Omission of this note under Diagnostic Code 7804, when it was specifically included under another code, strongly implies that it was not intended to apply to any other code. Under general principles of statutory construction, an omission from an express statutory list is deemed excluded from its coverage. See Norman J. Singer, Sutherland Statutory Construction § 47.23 (5th ed. 1992) ("The force of the maxim [expression unius est exclusio alterius] is strengthened where a thing is provided in part of the statute [or regulation] and omitted in another"). Moreover, a general presumption that multiple scars are to be rated separately would render superfluous the note under Diagnostic Code 7802. The version of Diagnostic Code 7804 in effect prior to October 23, 2008 refers to scars (plural). It is therefore apparent that multiple scars are contemplated. Hence, whether the Veteran had pain only of her right arm scar or of her right arm scar and torso scars does not matter as far as the rating to be assigned prior to October 23, 2008. That rating is 10 percent whether for one painful scar or three painful scars. As of October 23, 2008 Diagnostic Code 7804 provides that three or more painful scars are to be rated as 20 percent disabling. The evidence just discussed establishes that a rating of 10 percent disabling, but no higher, is warranted for the Veteran's painful scar or scars prior to October 23, 2008. As noted above, that rating is warranted from September 1, 2004. From October 23, 2008, forward, a rating of 20 percent, but no higher, is warranted for the Veteran's three painful scars. To this extent the appeal must be granted. The evidence as to higher schedular ratings is not so evenly balanced as to warrant application of the benefit-of- the- doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2008). GERD Service connection was established for GERD in the April 2006 rating decision and the RO assigned a noncompensable rating effective February 1, 2006, the date of claim. There is no diagnostic code specific to GERD. The RO has rated the Veteran's GERD under 38 C.F.R. § 4.114 Diagnostic Code 7346, which provides criteria for rating hiatal hernia. There are no other appropriate schedular criteria. Under 38 C.F.R. § 4.114, Diagnostic Code 7346 a 60 percent rating is assigned where there are symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. Id. A 30 percent rating is assigned for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. Id. A 10 percent rating is assigned when the disease exhibits two or more of the symptoms for the 30 percent evaluation of less severity. Id. The first evidence that provides information to which the schedular criteria can be applied is the February 2008 VA examination report. A medical history section includes that the Veteran has dysphagia even with medication (Nexium and Zantac), occurring at least once per month. She reported that if she does not take medication then she also suffers from pyrosis, epigastric pain, and substernal pain. This section lists that she also has sever reflux regurgitation but does not have hematemesis, melena, nausea, or vomiting. Physical examination revealed a good state of health. She has not had any weight loss but rather has gained 108 pounds from the time of her chemotherapy to the date of the examination. There were no signs of anemia. After reviewing the result of a January 2008 diagnostic test, the examiner stated that there was no endoscopic evidence of esophagitis, which he stated indicated effective treatment. He also stated that such treatment may not relieve all symptomatology. The examiner stated that if the Veteran takes her medication her symptoms can be described as persistently recurrent, including dysphagia and regurgitation. If she does not take the medication, her symptoms are productive of considerable impairment of health due to pain. The examiner summed up his report by stating that her GERD results in pain once a month even on medication but does not result in material weight loss, hematemesis, melena, or moderate anemia. This examination report is evidence that the Veteran has two of the symptoms listed in the criteria for a 30 percent rating. She does not have pyrosis unless she does not take her medication. However, as there is no indication that she does not take her medication it cannot be said that she has persistently recurring pyrosis or that her symptoms are productive of considerable impairment of health. The evidence therefore shows that her GERD does not approximate the criteria for a 30 percent rating. The Veteran does have two of the symptoms listed for the 30 percent rating; regurgitation and dysphagia, of lesser severity than that indicated in the criteria for the 30 percent rating, and such symptoms are present with or without medication. Hence, the Board finds that a 10 percent rating, but no higher, is warranted for the Veteran's GERD, under Diagnostic Code 7346. To that extent, her appeal is granted. As to a rating higher than 10 percent, the evidence is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2009). Toe disabilities Service connection was established for bunions and hallux valgus of both big toes in the December 2004 rating decision and the RO assigned noncompensable ratings effective in September 2004. In June 2006 she requested an increased rating. Unilateral hallux valgus is rated 10 percent if operated with resection of the metatarsal head or if it the hallux valgus is severe to the extent that it is equivalent to amputation of the great toe. 38 C.F.R. § 4.71a, Diagnostic Code 5280. Also considered by the Board, for rating by analogy as far as her bunions are concerned, the criteria found at Diagnostic Code 5284 for other foot injuries. Under those criteria a moderate foot injury is assigned a 10 percent rating, a moderately severe foot injury is assigned a 20 percent rating, and a severe foot injury is assigned a 30 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5284. The Veteran underwent a relevant VA examination in February 2007. A medical history indicates that the Veteran had not had any surgery of either foot. She reported symptoms, particularly of her arches, exacerbated by walking or standing. There was objective evidence of painful motion and tenderness on palpation of both feet, described as of the entire foot. This however, is not evidence of disability resulting from her service connected condition. Indeed, she indicated that her pain was particularly of the arches. Examination showed that she was unable to dorsiflex the first metatarso-phalangeal joint of each foot. X-rays showed moderate hallux valgus and hypertrophic changes of the medal aspect of the distal metatarsal head of each foot. There was no evidence of arthritis, old or recent trauma, or focal bony abnormality. An impression of the x-rays was moderate hallux valgus and bunion formation, otherwise negative. The examiner diagnosed the same. This examination report is evidence against assigning a compensable rating for either foot under any applicable criteria. The report does not paint a disability picture of such severe hallux valgus as to be equivalent to the loss of either big toe. She had not had resection of the metatarsal head of either big toe. Nor can the report be construed as showing that she has disability analogous to a moderate foot injury. Treatment records from Jacksonville Florida Naval Hospital document that the Veteran underwent a bilateral bunionectomy in April 2007. The report includes discussion of resection on both the left and right foot. A July 2007 radiology report characterizes the surgery as surgical resection of metatarsal head of both big toes. The operation and radiology reports are evidence that the Veteran has had resection of the metatarsal head of both big toes. This meets the criteria for a 10 percent rating for hallux valgus on the left and a 10 percent rating for hallux valgus on the right. The findings listed on the radiology report do not show that the Veteran has what could even liberally be construed as equivalent to a moderately severe foot injury on either side. Hence, ratings higher than 10 percent for each disability are not warranted. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule as to ratings higher than 10 percent disabling. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2009). Increased ratings - extraschedular The Board has also considered whether referral for a rating outside of the rating schedule is in order. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2009). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. Id. The Court of Appeals for Veterans Claims (Court) has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 38 Vet. App. 218, 227 (1995). In a more recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. As explained above, the Board has considered all applicable schedular criteria, even criteria that is at best only tangentially applicable (for example the criteria for foot injury). All of the symptoms reported by the Veteran fall into the criteria discussed above. There is no evidence that the Veteran's service connected injuries and diseases result in symptoms not contemplated by the schedule or result in a level of disability not accounted for by the schedule. Thus, analysis of this case under the first step specified in Thun indicates that referral for extraschedular consideration is not warranted; the Board need go no further in the analysis. As a matter of completeness the Board notes that even if there were symptoms or a level of disability not accounted for by the schedule, there have been no "related factors" such as repeated hospitalization or anything like marked interference with employment, or any similar such factors, associated with the Veteran's service connected disabilities. Referral is not indicated in this case. The evidence is not so close as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2009). 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 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). 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)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service- connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Here, the VCAA duty to notify was satisfied by way of a letters sent to the Veteran in January 2006, December 2006, and February 2008. In the January 2006 letter the RO addressed the Veteran's claims for hemorrhoids, fibromyalgia, and scars. In the December 2006 letter, the RO addressed the Veteran's claims regarding her toe disabilities. In the February 2008 letter the AMC addressed the Veteran's claims with regard to fibromyalgia, hemorrhoids, GERD, scars, and toe disabilities. As to each of the claims, notice informed the Veteran of the evidence needed to substantiate the claims and of the Veteran's and VA's respective duties in obtaining evidence. The February 2008 letter also informed the Veteran how VA assigns disability ratings and effective dates. Not all of this notice was provided prior to the initial adjudications by the RO. However, in May 2009 the RO readjudicated the issues involving GERD, disabilities of the Veterans toes, and fibromyalgia. In April 2009 the RO again adjudicated the claim with regard to hemorrhoids and scars. As the Veteran has had a meaningful opportunity to participate in the processing of her claims since content compliant notice was provided, and as her claims have all since been readjudicated, the timing errors have been cured. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). Therefore no prejudice has resulted to the Veteran because of such errors. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (explaining prejudicial error in the context of VCAA notice). VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting the Veteran in the procurement of service and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service, VA, and other pertinent treatment records are associated with the claims file. VA has afforded the Veteran adequate examinations with regard to all disabilities which are the subject of adjudication of the Veteran's appeal in the instant decision. The Veteran was provided an opportunity to set forth her contentions during the hearing before the undersigned Veterans Law Judge. Significantly, neither the Veteran nor her representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist under the VCAA. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Service connection for fibromyalgia is granted. An effective date of September 1, 2004 is granted for a 10 percent disability rating for scars resulting from treatment for service connected breast cancer, status post bilateral mastectomy with implants, subject to the laws and regulations governing the payment of monetary benefits. A 20 percent disability rating, but no higher, is granted for painful scars of the Veteran's torso and right arm for the period from October 23, 2008, forward, subject to the laws and regulations governing the payment of monetary benefits. A 10 percent disability rating, but no higher, is granted for GERD, subject to the laws and regulations governing the payment of monetary benefits. A 10 percent disability rating, but no higher, is granted for bunion of the left big toe, with hallux valgus from April 6, 2007 forward, subject to the laws and regulations governing the payment of monetary benefits. A 10 percent disability rating, but no higher, is granted for bunion of the right big toe, with hallux valgus from April 6, 2007 forward, subject to the laws and regulations governing the payment of monetary benefits. The appeal is denied as to a higher rating or ratings for the Veteran's hemorrhoids. REMAND In July 2008, VA afforded the Veteran a VA examination with regard to her claimed temporomandibular joint dysfunction in July 2008. The examiner provided findings and stated that the Veteran subjectively had temporomandibular joint dysfunction but that he could not validate the condition. Significantly, the examiner stated that the Veteran should be referred to a temporomandibular joint specialist. This last statement by the examiner indicates to the Board that VA has not fulfilled its duty to assist the Veteran by affording her an adequate examination as to her claimed temporomandibular joint dysfunction. A reasonable reading of that sentence in the context of the report is that the examiner did not have the expertise to reliably determine whether the Veteran suffered from temporomandibular joint dysfunction. The record therefor does not contain sufficient evidence for the Board to determine whether service connection is warranted for temporomandibular joint dysfunction. Hence, on remand VA must provide an examination of the Veteran by a medical professional who specializes in the diagnosis of temporomandibular joint dysfunction. In the June 2008 examination report the examiner stated that clinical notes from the Jacksonville, Florida Naval Hospital had been faxed to the office and indicated that she was treated for chronic sinusitis in January 2008 and that a CT scan had been ordered. He stated that the results of the CT scan were not included in the faxed material. The Board has reviewed those records. The stated reason for the CT scan was to document the presence of polyps. The Board cannot determine from the record if the scan was carried out, but there is enough information here to reasonably raise the issue of whether there is some outstanding evidence probative of the rating to be assigned for the Veteran's rhinitis/sinusitis disability. Moreover, in the June 2008 report the examiner stated that examination of the superior and inferior turbinates for polyps was not possible. He did not explain why this was not possible. This cannot be considered an adequate examination absent some compelling explanation as to why the Veteran could not be examined for nasal polyps; the presence or absence of which is determinative of whether a higher rating is warranted under applicable criteria. Hence, on Remand, VA must avail itself to the Veteran to assist her in obtaining results of any relevant CT study as indicated above. Similarly, the Veteran must be scheduled for another VA examination to determine if she has nasal polyps. If examination of relevant structures for polyps is not possible, the examiner must explain why it is not possible, including why diagnostic tests could not be ordered to detect whether any polyps are present. Accordingly, the case is REMANDED for the following action: 1. Send the Veteran and her representative a letter informing them that clinical records sent to VA from the Jacksonville Florida Naval Hospital indicated that a CT (to determine if polyps were present) had been at least suggested in January 2008 but the records received by VA from the Naval Hospital did not include a CT report. Inform her that she may either submit the report herself or request VA assistance in obtaining any such report. If no CT was ever done, she should so indicate. 2. After allowing an appropriate period of time for the Veteran to respond to the above, and obtaining any outstanding available records related to her sinusitis/rhinitis disability, ensure that the Veteran is afforded an opportunity for a VA examination to determine the extent of disability resulting from her sinusitis/rhinitis. The claims file must be provided to the examiner, the examiner must review the claims file in conjunction with the examination, and the examiner must annotate his or her report as to whether the claims file was reviewed. All diagnostic tests necessary to determine the extent of disability due to sinusitis/rhinitis must be completed unless there is a compelling reason indicating otherwise. If the examiner finds it impossible to completely examine the Veteran for nasal polyps he or she must explain. 3. Afford the Veteran an examination by a medical professional who specializes in the diagnosis of temporomandibular joint dysfunction (if possible). The claims file must be provided to the examiner, the examiner must review the claims file in conjunction with the examination, and the examiner must annotate his or her report as to whether the claims file was reviewed. The examiner is asked to address the following: (a) State whether the Veteran has temporomandibular joint dysfunction. (b) If the Veteran does have temporomandibular joint dysfunction, provide an opinion as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran's temporomandibular joint dysfunction had onset during active service from August 1984 to August 2004 or was caused by the Veteran's active service. 3. Then, readjudicate the issues that are the subject of this remand. If any benefit sought is not granted in full, provide the Veteran and her representative with a supplemental statement of the case and allow an appropriate opportunity to respond thereto. The appellant has the right to submit additional evidence and argument on the 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 Supp. 2009). ______________________________________________ JOHN J. CROWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs