Citation Nr: 1237131 Decision Date: 10/26/12 Archive Date: 11/09/12 DOCKET NO. 09-19 233 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a compensable rating for scars to the neck and right leg. 2. Entitlement to a rating in excess of 10 percent for degenerative arthritis of the right acromioclavicular joint prior to May 12, 2011. 3. Entitlement to a rating in excess of 20 percent for degenerative arthritis of the right acromioclavicular joint since May 12, 2011. 4. Entitlement to service connection for degenerative arthritis to the right hip. 5. Entitlement to service connection for a cervical spine disorder. 6. Whether a December 20, 1987 rating decision assigning a noncompensable rating for a scar to the neck should be revised or reversed on the basis of clear and unmistakable error (CUE). 7. Whether an October 24, 2007 rating decision assigning a 10 percent rating for degenerative arthritis of the right acromioclavicular joint should be revised or reversed on the basis of CUE. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD B. Thomas Knope, Counsel INTRODUCTION The Veteran retired from active duty in April 1980 with 20 years of service. He has a history of combat service in the Republic of Vietnam, and is in receipt of the Purple Heart Medal. This matter is on appeal from rating decisions in October 2007 and July 2009 by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. FINDINGS OF FACT 1. The scar on the Veteran's neck was observed to be 1 cm in width, non-adhesive and did not limit range of motion; visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets, or two or three characteristics of disfigurement have not been shown. 2. The scar on the Veteran's right leg was observed to be 4 cm long and 1 cm wide, was non-adhesive and did not limit range of motion; a scar that is deep, causing limitation of motion that is of an area exceeding 6 square inches or that is superficial, not causing limitation of motion that is 144 square inches, has not been shown. 3. Prior to September 16, 2010, the Veteran's right shoulder disability was characterized by complaints of pain (when lifting heavy objects or raising his right arm above his head) with occasional flare-ups of pain causing the inability to raise his arm above his shoulder; ankylosis of the scapulohumeral articulation, manifested by favorable abduction to 60 degrees, limitation of motion of the arm at shoulder level, recurrent dislocation or malunion of the scapulohumeral joint, clavicle or scapula have not been shown. 4. Since September 16, 2010, the Veteran's right shoulder disability has been characterized by complaints of pain when raising his arm to shoulder level; ankylosis of the scapula and humerus that is intermediate between favorable and unfavorable, limitation of arm motion to midway between the side and shoulder level, recurrent dislocation or malunion of the scapulohumeral joint with marked deformity have not been shown. 5. The Veteran's cervical spine disorder and right hip disorder was not shown during service or for many years thereafter, and are unrelated to service. 6. The statutory and regulatory provisions extent at the time of the December 1987 and October 2007 rating decisions were correctly applied. 7. There was no CUE in the December 1987 and October 2007 rating decisions when assigning the appropriate disability ratings for the Veteran's service-connected residuals of a shell fragment wound to the neck and right shoulder disability. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating, but no more, for a scar to the Veteran's neck have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.118, Diagnostic Codes (DC) 7800-7806 (2008 & 2012). 2. The criteria for a compensable rating for a scar to the Veteran's right leg have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.118, DCs 7800-7806 (2008 & 2012). 3. The criteria for rating in excess of 10 percent for degenerative arthritis of the right acromioclavicular joint prior to September 16, 2010, have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5200, 5201, 5202 (2012). 4. The criteria for 20 percent rating, but no more, for degenerative arthritis of the right acromioclavicular joint since September 16, 2010, have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.40, 4.45, 4.59, 4.71a, DCs 5200, 5201, 5202 (2012). 5. Degenerative arthritis of the right hip was not incurred in or aggravated by service, nor can it be presumed to be related to active duty service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 6. A cervical spine disorder was not incurred in or aggravated by service, nor can it be presumed to be related to active duty service. 38 U.S.C.A. §§ 1110, 1131, 5103(a), 5103A (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 7. The December 1987 rating decision characterizing the residuals of a shell fragment wound as a scar was not CUE. 38 U.S.C.A. §§ 1110, 1131, 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.105(a), 3.344, 3.500(1)(b). 8. The December 1987 and October 2007 rating decisions assigning a 10 percent rating for degenerative arthritis of the right acromioclavicular joint, effective September 18, 2006, was not clear and mistakable error. 38 U.S.C.A. §§ 1110, 1131, 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.105(a), 3.344, 3.500(1)(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Here, neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009); Goodwin v. Peake, 22 Vet. App. 128 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). None is found by the Board. Indeed, the VCAA duty to notify was satisfied by way of a letter sent to the Veteran in October 2006 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter informed him of what evidence was required to substantiate the claim and of his and VA's respective duties for obtaining evidence. It also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date. Therefore, adequate notice was provided to the Veteran prior to the transfer and certification of his case to the Board and complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). Next, VA has a duty to assist a veteran in the development of the claim. This duty includes assisting him or her in the procurement of service treatment records and other pertinent records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2012). After a careful review of the file, 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). First, while the RO has obtained a substantial amount of the Veteran's service treatment records, it does not appear that they have been obtained in their entirety, as there are no medical records from prior to 1968. The claims file also includes a letter from the National Personnel Records Center (NPRC) indicating that there were no treatment records in their possession. As such, even though some of the treatment records appear to be missing, the Board is nevertheless satisfied that a diligent attempt has been made to acquire them. The RO has also acquired all available VA outpatient treatment records as well as post-service records from any military facilities. Notably, the claims file includes a letter from the VA Medical Center in Tampa, Florida, indicating that no records were available at that location and the RO made a formal determination in January 2010 that no records were available from the VA Medical Center in Baltimore, Maryland. However, even though these particular records were not acquired, the Board is nevertheless satisfied that the duty to assist has been met in this regard. Further, the Veteran submitted his own private treatment records, from Johns Hopkins University and other locations. While the Veteran stated that he received post-service treatment from the medical center at MacDill Air Force Base, this facility responded that it no longer had any of his records in its possession. Nevertheless, the Board is satisfied that diligent efforts were made to obtain them, and the duty to assist has been met in this regard. Next, VA examinations with respect to the Veteran's scar and right shoulder claims were obtained in October 2007 and May 2011. 38 C.F.R. § 3.159(c) (4). To that end, when VA undertakes to provide a VA examination, it must ensure that the examination is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). In this case, the Board finds that the VA examinations obtained in this case are more than adequate, as they are predicated on a full reading of the private and VA medical records in the Veteran's claims file. They consider all of the pertinent evidence of record, to include the Veteran's own statements, and a personal examination of the Veteran. The reports also provide a sufficient rationale for any conclusions. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue on appeal has been met. 38 C.F.R. § 3.159(c) (4). As for the service connection claims, the Board acknowledges that a VA medical opinions were not was not obtained to determine the nature and etiology of his cervical spine and right hip disorders. In determining whether the duty to assist requires that a VA medical examination be provided or medical opinion obtained with respect to a veteran's claim for benefits, there are four factors for consideration: (1) whether there is competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) whether there is evidence establishing that an event, injury, or disease occurred in service, or evidence establishing certain diseases manifesting during an applicable presumption period; (3) whether there is an indication that the disability or symptoms may be associated with the veteran's service or with another service-connected disability; and (4) whether there otherwise is sufficient competent medical evidence of record to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In deciding whether to remand the issue for a medical nexus opinion, the Board notes that the Federal Circuit, in a recent decision, upheld the determination that a VA medical examination is not required as a matter of course in virtually every veteran's disability case involving a nexus issue. Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) (distinguishing cases where only a conclusory generalized statement is provided by the veteran, in which case an examination may not be required). In this case, the evidence does not indicate that either of these disorders was present while on active duty. Moreover, even though the Veteran is a combat veteran, he has not asserted that either of these disorders occurred while in combat operations. Therefore, the Board finds that a remand for a VA opinion would not be beneficial in the adjudication of this issue to the extent that it was denied, and is thus not required in this case. Finally, although the Veteran requested a hearing before a Decision Review Officer in January 2009, he stated in January 2010 that he wished to withdraw this request. Nevertheless, the Board has determined that the duty to assist has been met in this regard. Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of the claims. 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). Increased Ratings Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. See 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). However, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). Finally, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Scars The Veteran currently has a noncompensable rating for the scars on his neck and right leg resulting from shell fragment wounds. As an initial matter, the Board notes that the rating criteria for evaluating scars under 38 C.F.R. § 4.118, DCs 7800-7805 were amended during the pendency of this appeal (effective October 23, 2008). However, the revised criteria apply only to applications for benefits received by VA on or after the effective date of October 23, 2008. See 73 Fed. Reg. 54,710 (Sept. 23, 2008). It should be noted that a veteran who is rated under DCs 7800 to 7805 before October 23, 2008 may request review under the amended diagnostic codes, irrespective of whether the Veteran's disability has increased since the last review. In such cases, VA will review that veteran's disability rating to determine whether the Veteran may be entitled to a higher disability rating under diagnostic codes 7800, 7801, 7802, 7804, and 7805, but in no case will the revised award be effective before October 23, 2008 In this case, the Veteran's claim for an increased rating was received by the RO in September 2006, which precedes the effective date of the revised criteria. Thus, only the pre-amended regulations were considered. As this claim was received by VA prior to October 23, 2008, the amended criteria are not applicable and are not considered. The Board first addresses scar on the Veteran's neck based on disfigurement. Under the pre-amended criteria, a compensable rating for a scar to the head, face or neck is warranted based on disfigurement when the scar causes disfigurement with one characteristic of disfigurement. See 38 C.F.R. § 4.118, DC 7800 (pre-amended 2008) (10 percent). Under Note 1 of this diagnostic code lists the eight characteristics of disfigurement as: (1) a scar 5 or more inches (13 or more cm.) in length; (2) a scar at least one-quarter inch (0.6 cm.) wide at widest part; (3) surface contour of scar elevated or depressed on palpation; (4) a scar adherent to underlying tissue; (5) skin hypo-or hyper- pigmentation in an area exceeding six square inches (39 sq. cm.); (6) skin texture abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) underlying soft tissue missing in an area exceeding six square inches (39 sq. cm.); and (8) skin indurated and inflexible in an area exceeding six square inches (39 sq. cm.). As an initial matter, a 10 percent rating is warranted for the Veteran's scar. Specifically, at a VA examination in October 2007, the examiner observed a "very slightly indented lesion, about 1 cm in greatest diameter" on the Veteran's neck. While there are no pictures of the scar, the Board may conclude by this description that at least one-quarter inch (0.6 cm.) wide at widest part. Accordingly, a characteristic of disfigurement contemplated by the DC 7800 has been shown, and a 10 percent rating is warranted on this basis. Next, the Board will consider whether a rating in excess of 10 percent is warranted based on disfigurement. In order to warrant a rating in excess of 10 percent for a scar to the head, face or neck, the evidence must show either: * visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets (such as the nose, cheeks, eyes, chin, ears, etc.); or * two or three characteristics of disfigurement have been shown. See 38 C.F.R. § 4.118, DC 7800 (30 percent). However, a rating in excess of 10 percent is not warranted for the scar on the Veteran's neck. First, there is no indication that there is visible or palpable tissue loss, nor is there any indication of gross distortion or asymmetry. Specifically, as noted above, the Veteran's scar was relatively small, was not hyperpigmented, nor was it atrophic. The examiner did not indicate that there was any visible tissue loss, nor was there any gross distortion. Indeed, the Veteran has not asserted that such gross distortion exists. Therefore, an increased rating is not warranted on this basis. Additionally, two or three characteristics of disfigurement have not been shown. While the VA examiner in October 2007 described the scar as least a quarter inch wide at the widest part, there is no indication that the scar that it is five inches long or greater, or that the scar is six square inches in size. As such, none of the remaining characteristics of disfigurement that are based on size are applicable. Moreover, at the October 2007 VA examination, the examiner noted that the Veteran's scar was not atrophic or hyperpigmented. There was no loss of tissue under the scar, nor was there any herniation or dehiscence through the scar. Therefore, adherence to the underlying tissue has not been shown. It is true that the VA examiner observed that the Veterans scar was "slightly indented." However, the Board does not construe this to mean that the scar is "elevated or depressed on palpation." Notably, this same examiner also observed that the scar was not atrophic. Therefore, based on the observations by the VA examiner in October 2007, the Board concludes that one characteristic of disfigurement, but no more, has been shown. As such, a 10 percent rating is warranted for the scar on his neck on this basis. The Veteran's scar on his right leg is based on different criteria, since it is not to the head, face or neck. In order to warrant a compensable rating for a scar to the leg under the preamended criteria, the evidence must show: * a scar that is deep, causing limitation of motion that is of an area exceeding 6 square inches (39 sq. cm) (10 percent under DC 7801); * a scar that is superficial, not causing limitation of motion that is 144 square inches (929 sq. cm) or greater (10 percent under DC 7802) Here, a compensable rating is not warranted for the scar on the Veteran's right leg on these bases. Specifically, at his VA examination in October 2007, the scar was described as "leaf-shaped," approximately 4 cm long and 1 cm wide at the widest point. However, even when presuming that the scar is 4 sq. cm in size, it is much smaller than is necessary to warrant a compensable rating under these bases. Therefore, a compensable rating is not warranted for the scar on the Veteran's right leg based on size. With regard to both scars, a separate rating may also be warranted if either scar is: * is superficial but unstable (i.e. there is frequent loss of covering of skin) (10 percent under DC 7803); or * is superficial but painful upon examination (10 percent under DC 7804). See 38 C.F.R. § 4.118 (2008). However, a separate 10 percent rating is not warranted for either scar on these bases. Specifically at his VA examination in October 2007, the scar on the Veteran neck was described as nontender, there was no herniation or dehiscence through the scar, nor was there any loss of tissue under the scar. The scar on the Veteran's leg was also observed to be nontender, with no adherence to the underlying tissue. There was no loss of tissue under the scar, nor was there any herniation of muscle through the scar. Therefore, based on the observations made by the VA examiner, and in the absence of any evidence to the contrary, neither scar appears to be unstable or painful upon. As such, a separate compensable rating is not warranted for either scar on these bases. Overall, as the evidence indicates that the scar on the Veteran's neck is greater than .5 cm in width, a 10 percent rating, but no more, is warranted on this basis. However, the scar on his right leg is too small to warrant a compensable rating, and a separate compensable rating is not warranted for either scar based on tenderness or instability. Right Shoulder Regarding the Veteran's right shoulder disability, ratings of the musculoskeletal system are based primarily on the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective enervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45 (2012). The Court of Appeals for Veterans Claims (CAVC) has held that the RO must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss under 38 C.F.R. § 4.40, which requires the VA to regard as "seriously disabled" any part of the musculoskeletal system that becomes painful on use. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.14 (avoidance of pyramiding) do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including during flare-ups. The Board notes that the guidance provided by the CAVC in DeLuca must be followed in adjudicating claims where a rating under the diagnostic codes governing limitation of motion should be considered. Furthermore, the intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, actually painful, unstable, or malaligned joints, due to healed injury, are as entitled to at least the minimum compensable rating for the joint. The joints should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See 38 C.F.R. § 4.59 (2012). When the Veteran submitted the claim on appeal, his right shoulder had a noncompensable rating. Since then, an October 2007 rating decision increased his disability rating to 10 percent for the entire course of the appeal. A more recent rating decision in March 2012 increased his disability rating to 20 percent, effective May 12, 2011. While these are partial grants of the Veteran's claim, a rating decision which grants less than the maximum available rating does not abrogate the pending appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Corchado v. Derwinski, 1 Vet. App. 160 (1991). The Board first addresses the period prior to May 12, 2011, where the Veteran was rated at 10 percent for his right shoulder disability (his dominant side). In order warrant a rating in excess of 10 percent the evidence must show. * ankylosis of the scapulohumeral articulation, manifested by favorable abduction to 60 degrees, allowing the mouth and head to be reached (30 percent under DC 5200); * limitation of motion of the arm at shoulder level (20 percent under DC 5201); * recurrent dislocation of the scapulohumeral joint with infrequent episodes and guarding of movement only at the shoulder level (20 percent under DC 5202); * malunion of the scapulohumeral joint with moderate deformity (20 percent under DC 5202); or * dislocation or nonunion with loose movement of the clavicle or scapula or (20 percent under 5203). See 38 C.F.R. § 4.71a (2012). As an initial matter, the Board notes that the Veteran underwent a private evaluation in September 2010 where, as is relevant here, he exhibited 170 degrees of flexion. However, the treating physician noted that the Veteran exhibited pain beyond 90 degrees. When affording the Veteran the benefit of every reasonable doubt, and while considering the functional effects caused by pain, the Board determines that his right shoulder is functionally limited to shoulder level. Therefore, a 20 percent rating is warranted since September 16, 2010, the date of that examination. However, a rating in excess of 10 percent is not warranted prior to September 16, 2010. First, ankylosis of the scapulohumeral articulation, manifested by favorable abduction to 60 degrees or allowing the mouth and head to be reached, or limitation of motion of the arm at shoulder level have not been shown. Specifically, when the Veteran underwent a VA examination October 2007, he complained of a history of right shoulder pain that he characterized as "pretty much constant," and are sensitive to changes in the weather. He also complains of occasional spasms. Upon examination, there was some slight tenderness to the joint upon palpation. He was able to abduct the arm normally to 180 degrees with no difficulty. He was able to flex his arm to only 140 degrees before pain was noted. Ranges of motion were not additionally diminished. Moreover, he was able to reach his right arm across his body to his left shoulder. Significantly, there are no other treatment notes in the record indicating that his range of motion was any more diminished than was indicated here. Therefore, as limitation of the arm to shoulder level or ankylosis of any sort has not been shown, an increased rating prior to September 16, 2010 is not warranted on this basis. Next, the evidence also does not indicate recurrent dislocation of malunion of the scapulohumeral joint, nor is there evidence of dislocation or nonunion of the clavicle or scapula. Specifically, at his VA examination in October 2007, the Veteran reported that he did not use any kind of shoulder brace, and he denied episodes of dislocation or subluxation. Significantly, there is no evidence in the record that suggests episodes of dislocation or malunion of the shoulder. As such, an increased rating is not warranted prior to September 16, 2010 on this basis. Next, the Board will consider whether a rating in excess of 20 percent is warranted since September 16, 2010. In order to warrant such a rating, the evidence must show: * ankylosis of the scapula and humerus that is intermediate between favorable and unfavorable (30 percent under DC 5200); * limitation of arm motion to midway between the side and shoulder level (30 percent under DC 5201); * recurrent dislocation of the scapulohumeral joint with frequent episodes and guarding of all arm movements (30 percent under DC 5202); or * malunion of the scapulohumeral joint with marked deformity (30 percent under DC 5202). See 38 C.F.R. § 4.71a (2012). Based on the evidence of record, a rating in excess of 20 percent is not warranted since September 16, 2010. First, ankylosis of the scapula and humerus or limitation of arm motion midway between the side and shoulder level has not been shown. Specifically, at a private evaluation in September 2010, he was able to raise his arm to 90 degrees before he began to feel pain. At a second evaluation in October 2010, he stated that his pain was constant, and was aggravated when reaching overhead. However, he was still able to raise his arm to 139 degrees in flexion and 162 degrees of scaption. The Veteran also underwent a VA examination in May 2011 that was specifically directed toward this disorder. There, he complained of persistent muscle spasms and pain, and mentioned that he experiences a flare-up of pain once every 2 to 3 months. However, precipitating factors were not always consistent. Upon examination, a clicking noise was heard in the joint. His range of motion was significantly reduced from prior evaluations, as he now exhibited only 65 degrees of flexion and 80 degrees of abduction before pain was present. While there was objective evidence of pain after repetitive motion, it was not observed to cause additional limitation. Clearly, the Veteran's range of motion in the right shoulder is limited. However, he has never exhibited a range of motion so restricted that is limited to midway between the side and shoulder level (i.e. 45 degrees from the side). Moreover, although a limited range of motion had been shown, ankylosis (favorable or unfavorable) has not been shown. Therefore, an increased rating is not warranted on this basis. The evidence also does not indicate episodes of shoulder dislocation or malunion of the scapulohumeral joint. For example, radiographic imaging of the right shoulder in September 2010 indicated arthritis in the glenohumeral joint. However, there was no evidence of fracture or dislocation, nor was there evidence of bony erosion. Additionally, at his VA examination in May 2011, the examiner noted no past episodes of dislocation of subluxation. Therefore, as there is no history of dislocation or malunion in the shoulder joint, an increased rating is not warranted on this basis. In considering the appropriate ratings, the Board has also considered a functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-7 (1995). However, an evaluation in excess of the ones currently assigned for the Veteran's service-connected right shoulder disability are not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are contemplated by the ratings already assigned. Specifically, while the Veteran has complained of pain when lifting his shoulder above his head, the evidence does not indicate that such pain limits his ability to function to the point necessary for a higher rating. The Board has also noted the Veteran's complaints of generalized pain in the shoulder, regardless of range of motion. However, the mere presence of pain does not, by itself, constitute functional loss. Rather, the pain must affect some aspect of the normal working movements of the body such as strength, speed, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 37-43 (2011). Put another way, while the Veteran has complained of pain, these complaints are adequately contemplated in the ratings he currently receives. Overall, as the evidence reflects pain at 90 degrees of flexion at a private evaluation in September 2010, a 20 percent rating for the Veteran's right shoulder disability is not warranted since September 16, 2010. However, the evidence does not indicate that a rating in excess of 10 percent is warranted prior to that date. Moreover, the evidence does indicate that a rating in excess of 20 percent is warranted since that date. In adjudicating these claims, the Board has also considered the Veteran's statements that these disabilities are worse than the ratings he currently receives. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno, 6 Vet. App. at 470. He is not, however, competent to identify a specific level of disability of either scars or a right shoulder disability according to the appropriate diagnostic codes. On the other hand, such competent evidence concerning the nature and extent of the Veteran's disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which these disabilities are evaluated. Next, the Board will consider whether referral for an extraschedular evaluation is warranted. The question of an extraschedular rating is a component of a claim for an increased rating. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). The Court of Appeals for Veteran's Claims has clarified the analytical steps necessary to determine whether referral for such consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). First, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. In this case, the evidence does not indicate that Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Veteran's scars and right shoulder disability symptoms were applied to the applicable rating criteria, general counsel opinions, and case law. Although the diagnostic codes in this case allow for higher ratings, the Board fully explained why the higher ratings were not warranted. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, although the Veteran has submitted evidence of a medical disability, and made a claim for the highest rating possible, he has not submitted evidence that he is unemployable due to his service-connected disabilities. Therefore, the question of entitlement to a total disability rating based on individual unemployability due to a service-connected disability has not been raised. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In sum, after a careful review of the evidence of record, the Board determines that a 20 percent rating for the Veteran's right shoulder disability is warranted since September 16, 2010. However, the evidence does not indicate that a rating in excess of 10 percent is warranted prior to that date or in excess of 20 percent is warranted since that date. Additionally, the while the Board determines that a 10 percent rating is warranted for the scar on the Veteran's neck, a rating in excess of 10 percent is not warranted, and a compensable rating for the scar on his right leg is not warranted. The appeals are denied to this extent. Service Connection Under the relevant laws and regulations, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002). Generally, the evidence 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. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004); Caluza v. Brown, 7 Vet. App. 498, 505 (1995). Moreover, under 38 C.F.R. § 3.303(b), the second and third elements of Shedden and Caluza may be established through a demonstration of continuity of symptomatology. Barr v. Nicholson, 21 Vet. App. 303 (2007). Continuity of symptomatology may be established if a claimant can demonstrate (1) that a condition was "noted" during service; (2) evidence of post- service continuity of the same symptomatology; and (3) medical or, in certain circumstances, lay evidence of a nexus between the present disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997). 38 U.S.C.A. § 1154(a) requires that VA give "due consideration" to "all pertinent medical and lay evidence" in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Specifically, "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). Of note in this case, the evidence indicates that some of the Veteran's service records are unavailable, as there are no records prior to 1968. The Board recognizes that in such cases there is a heightened obligation to assist the appellant in the development of the case, to explain findings and conclusions, and to consider carefully the benefit of the doubt rule in cases, such as in this situation, in which records are presumed to have been or were destroyed while the file was in the possession of the government. See Washington v. Nicholson, 19 Vet. App. 362, 369- 70 (2005); see also Cromer v. Nicholson, 19 Vet. App. 215, 217 (2005) (citing O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991)). However, the legal standard for proving a claim for service connection is not lowered. Rather, it increases the Board's obligation to evaluate and discuss in its decision all of the evidence that may be favorable to the claimant. See Russo v. Brown, 9 Vet. App. 46 (1996). The missing service treatment records notwithstanding, the Board recognizes that the Veteran is a combat veteran. In such cases, VA shall accept lay evidence as sufficient proof service-connection of any disease or injury alleged to have been incurred in or aggravated by during active service, so long as such lay evidence is consistent with the circumstances of such service. The Veteran's assertions may be rebutted only upon a showing of clear and convincing evidence to the contrary. 38 U.S.C.A. § 1154(b). In September 2006, the Veteran submitted claims seeking service connection for a right hip disorder and a cervical spine disorder. As an initial matter, he has not asserted that these disorders are related to his combat experiences per se. Rather, as he described in an April 2011 statement, he attributes his physical disorders to the cumulative effect of activities such as parachute jumping, rappelling, carrying heavy equipment over long distances, and running in hard-soled boots. While he stated that he was forced to run, crawl, stoop and sleep on bare-ground surfaces while in Vietnam, he has not asserted that he specifically injured his hip or his cervical spine during combat operations. Next, the Veteran's service treatment records reflect no complaints of, treatment for, or a diagnosis related to the either a hip disorder or a cervical spine disorder, or any symptoms reasonably attributed thereto. In fact, over his lengthy service, he underwent a number of periodic physical examinations, none of which noted symptoms related to the right hip or the cervical spine. In fact, at one such examination in December 1978, a number of musculoskeletal disorders were reviewed, to include past fractures to the left arm and right great toe, an old injury to the low back, but no hip or cervical spine disorder was discussed. Additionally, at his retirement physical examination in January 1980, no disorders to the hip or cervical spine was observed. The Board does recognize that the Veteran incurred a shell fragment wound to the neck while on active duty. This injury was noted at his annual physical examination in December 1978 and again at his retirement physical examination in January 1980. However, these examinations do not suggest that the shell fragment, which is still present in his neck, had any effect on his spine. In fact, the examination in December 1978 mentioned "no nerve or tendon involvement," and the examination in January 1980 referred to the wound as superficial. Therefore, while he did receive a shell fragment wound to the neck, the evidence does not indicate that there was any pathology to the spine itself. Therefore, no chronic hip or cervical spine disorder was noted in service. Next, post-service evidence does not reflect right hip or cervical spine symptomatology for many years after service discharge. Specifically, an X-ray performed in August 1988 indicated narrowing of the C6-C7 right neural foramen. A right hip disorder was not clinically diagnosed until an X-ray in May 2005 indicated mild non-specific osteoarthritic changes. The Board emphasizes the multi-year gap between discharge from active duty service in 1980, and the first clinical diagnosis of a cervical spine disorder (8 years) and a right hip disorder (17 years). Moreover, as was noted above, neither disorder was observed at the time of his retirement physical examination in January 1980. In addition to the documented post-service treatment records, the evidence includes the Veteran's statements asserting continuity of symptoms. The Board is required to assess the credibility and probative weight of all relevant evidence, including the credibility of the Veteran's statements. McClain v. Nicholson, 21 Vet. App. 319, 325 (2007). In doing so, the Board may consider factors such as facial plausibility, bias, self interest, and consistency with other evidence of record. Caluza v. Brown, 7 Vet. App. at 511; see also Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); cf. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). In this regard, it is true that the Veteran is competent in some cases to self-diagnose some disorders despite his status as a lay person. However, he is not competent diagnose musculoskeletal disorders such hip or spine disorders, as they may not be diagnosed by its unique and readily identifiable features, and thus requires a determination that is "medical in nature." See Jandreau, 492 F.3d at 1377, n.4. Nevertheless, the Veteran's lay testimony is competent to establish the presence of observable symptomatology and may provide sufficient support for a claim of service connection, if credible, regardless of the lack of contemporaneous medical evidence. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the Board determines that the Veteran's reported history of continued symptomatology since active service, while competent, is nonetheless not credible. In making this determination, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190 (1991). Specifically, in addition to the fact that the Veteran went many years before submitting a claim for service connection, see Shaw v. Principi, 3 Vet. App. 365 (1992) (a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim), he actually filed claims for service connection in September 1987, but failed to mention disorders either to his cervical spine or his right hip. In the Board's view, the fact that the Veteran was aware of the VA benefits system, sought out a claim for compensation for disorders to his right shoulder and scars, but made no reference to his purported history of a cervical spine disorder or right hip disorder weighs heavily against his credibility. Kahana v. Shinseki, 24 Vet. App. 428, 438 (2011)(Lance, J., concurring) (discussing the distinction between cases in which there is a complete absence of any evidence to corroborate or contradict the testimony, and cases in which there is evidence that is relevant either because it speaks directly to the issue or allows the Board as factfinder to draw a reasonable inference). Had the Veteran been experiencing symptoms related to his cervical spine or right hip at that time, there seems to be no reason why the Veteran would not have identified those disabilities. It is also significant that the Veteran did not mention the presence of a hip or cervical spine disorder at a VA examination in December 1987. In fact, an X-ray performed at that time indicated a normal cervical spine. Therefore, continuity has not here been established, either through the competent evidence or through the Veteran's statements. Next, service connection may be granted when the evidence establishes a medical nexus between active duty service and current complaints. In this case, the Board finds that the weight of the competent evidence does not attribute the Veteran's right hip or cervical spine disorders to active duty, despite his contentions to the contrary. Significantly, none of the competent evidence of record indicates a relationship between these disorders and active duty, nor has any treating professional indicated such a relationship. The Board has also considered the statements made by the Veteran relating his right hip and cervical spine disorders to his active service. The Federal Circuit has held that "[l]ay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional." Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009) (quoting Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007)). In this case, however, neither the Veteran nor the appellant are competent to provide testimony regarding the etiology of his cervical spine or right hip disorders. See Jandreau, 492 F.3d at 1377, n.4. Because these disorders are not diagnosed by unique and readily identifiable features, they do not involve a simple identification that a layperson is competent to make. Therefore, the unsubstantiated statements regarding the claimed etiology of the Veteran's cervical spine and hip disorders are found to lack competency. In light of the above discussion, the Board concludes that the preponderance of the evidence is against the claim for service connection and there is no doubt to be otherwise resolved. As such, the appeals are denied. Clear and Unmistakable Error Under VA regulations, previous determinations which are final and binding, including decisions of related to degree of disability and effective date will be accepted as correct in the absence of clear and unmistakable error (CUE). Where evidence establishes such error, the prior decision will be reversed or amended. Pursuant to 38 C.F.R. § 3.105(a) (2012). CUE is a very specific and rare kind of error. It is the kind of error, whether of fact or law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. Generally, either the correct facts, as they were known at the time, were not before the Board, or the statutory and regulatory provisions extant at the time were incorrectly applied. In order for CUE to exist, the evidence must show that (1) either the correct facts, as they were known at that time, were not before the adjudicator (i.e., more than a simple disagreement as to how the facts were weighed or evaluated), or the statutory or regulatory provisions extant at the time were incorrectly applied, and (2) the error is 'undebatable' and the sort that which, had it not been made, would have manifestly changed the outcome at the time it was made. In reviewing this evidence, determinations of CUE must be based on the record and law that existed at the time of the prior adjudication in question. Damrel v. Brown, 6 Vet. App. 242, 245 (1994) (citing Russell v. Principi, 3 Vet. App. 310, 313-14 (1992)). Right Shoulder Disability While the first issue is whether the RO committed CUE in its October 2007 decision, which granted a 10 percent disability rating for his right shoulder disability, the Veteran's fundamental argument is that he should be entitled to a 10 percent rating from the time of his original claim, which he submitted on September 14, 1987. As such, in order to adequately address the Veteran's assertions, the Board must consider two questions: (1) whether there was CUE in the December 1987 decision when is granted a noncompensable rating; and (2) whether there was CUE in the October 2007 decision by granting an effective date of September 18, 2006 for the Veteran's 10 percent rating. Based on the evidence available at the time of each decision, there was no CUE in either decision. First, as to the December 1987 decision, the RO concluded that service connection right shoulder disability should be granted based on a three-month history of right shoulder symptomatology in 1979. In assigning a noncompensable rating, the RO noted that the Veteran exhibited a full range of motion with pain at approximately 90 degrees of abduction. The pertinent evidence at the time of this decision included a number of service treatment records from 1979 and 1980. Specifically, in August 1979, the complained about "difficulty" in his right shoulder for the past three months that started when he was training on parallel bars. He stated that it bothers him at 45 degrees of abduction. Upon examination, pain was indicated at approximately 90 degrees of abduction with "crackling" during such motion. The diagnosis at that time was limited to tendonitis to the right shoulder. In a January 1980 orthopedic clinic evaluation, he complained of pain and swelling that was associated with numbness in the right forearm and hand. Upon examination, no atrophy was observed and he exhibited a full range of motion. Mild right shoulder tendonitis was also noted on his retirement physical examination report. A review of this evidence indicates that, when it issued its November 1987 rating decision, the RO did not misconstrue any of the evidence in the record. Accordingly, there is nothing in the evidence that was of record at the time of that decision that would materially alter what the appropriate rating should be. Moreover, there is no material evidence of record that should have been in the ROs possession at the time of the November 1987 rating decision. The Board recognizes the Veteran's fundamental assertion that the RO did not correctly rate his right shoulder disability when issuing the November 1987 rating decision. However, an assertion of CUE does not allow the Board to reevaluate the evidence was in VA's possession at the time the rating decision was issued. Moreover, when the Veteran was sent a copy of this rating decision in January 1988, he was provided with a notice of procedural and appellate rights. Nevertheless, the Veteran failed to appeal this decision. Therefore, there was no CUE in the December 1987 decision. Next, the Board considers whether there was CUE in the RO's October 2007 decision when it granted a 10 percent rating for his right shoulder disability with an effective date of September 18, 2006. The effective date of a grant for an increased rating (where the reopening is not due to new service medical records) will be the day of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (2012). However, the effective date may also be the earliest date as of which it is "factually ascertainable" that an increase in disability had occurred if the claim is received within one year from the date of the increase. See 38 C.F.R. § 3.400(o)(2) (2012). It is noted at the outset that there was no substantive correspondence in the record relating to a right shoulder disability from the time of the December 1987 decision until the time he submitted his new claim in September 2006. As such, there is no basis for an effective date prior to September 18, 2005, under any circumstances. As for whether an effective date was warranted prior to September 18, 2006, but after September 18, 2005, the evidence includes VA treatment records from the VA treatment center in San Juan, Puerto Rico from this period of time. However, there is no treatment to his right shoulder noted in these records. Moreover, there are no other treatment records from this time that would suggest that there was CUE in the October 2007 rating decision. Overall, the Board has considered the Veteran's assertion that he was entitled to a 10 percent rating for his right shoulder disability since he was originally service-connected in December 1987. However, the Board has concluded that there is no CUE in that decision or the effective date assigned by the RO in its October 2007 decision. Therefore, the motion to revise either decision in this regard is denied. Shell Fragment Wound The Veteran asserts that the RO committed CUE in its December 1987 decision by rating the residuals of the shell fragment wound under 38 C.F.R. § 4.118, DCs 7800-7805 (addressing scars). He instead asserts that his shell fragment wound should have been rated as a muscle injury under 38 C.F.R. § 4.73, DCs 5319, 5322, 5223 (addressing injuries to the neck muscles affecting head movement). As is relevant here, scars to the neck are rated based on factors such as level of disfigurement, stability, pain and limitation of motion. See generally 38 C.F.R. § 4.118. By contrast, muscle injuries are rated based on factors such as the type of muscle injury, treatment history and symptomatology and current objective findings, and will be rated as one which is "slight," "moderate," "moderately severe," or "severe." 38 C.F.R. § 4.56 (2012). According to the December 1987 decision, the RO granted service connection for the scar on the Veteran's neck resulting from a shell fragment wound. Citing an X-ray of the cervical spine, which indicated the presence of a foreign body in the soft tissues of the neck, the RO determined that the residuals of this shell fragment wound were best addressed under scars rather than as a muscle injury. The Board finds that the RO's characterization of the Veteran's shell fragment wound as a scar rather than a muscle injury was not CUE. As an initial matter, despite the RO's diligent attempts to obtain them, the Veteran's service treatment records are not complete, and do not include any treatment notes prior to 1968. Therefore, the RO would have not been able to adequately consider the extent of any muscle injury at the time it occurred. Moreover, while the service treatment records that are of record do mention a history of a shell fragment wound, the Veteran did not complain of any neck muscle symptoms at any of the physical examinations he underwent. Most notably, at his retirement physical examination in January 1980, the wound to his neck was characterized as a "superficial wound" with no sequalae. Given these observations by medical examiners, there is no evidence that was of record at the time of the December 1987 RO decision that would indicate either that the RO committed an error of fact or law such that the result would have been manifestly different but for such error. Indeed, given its characterization as a "superficial wound" at the January 1980 examination, it does not appear that there was a muscle injury at all, despite the Veteran's assertions to the contrary. Finally, while the Veteran cites August 1988 and December 1988 VA treatment records revealing right neck spasms as supporting his contention that the shell fragment wound resulted in a muscle injury, the Board must consider only the records that were before the RO at the time of the December 1987 decision. These records post-date the decision. In short, there was no probative evidence showing that the shell fragment wound resulted in a painful muscle condition or in a muscle disability. The mere presence of a retained foreign body is insufficient to warrant a separate rating for a muscle injury. At best, based on the history of injury, the condition could be characterized as slight. Under the rating criteria extent at the time of the December 1987 decision, such would not warrant a compensable rating. Here, the RO rated the disability based on the predominant symptoms and physical examination findings. Therefore, the Board determines that there was no CUE in the December 1987 decision, and revision of this decision is not warranted. (CONTINUED ON NEXT PAGE) ORDER A 10 percent rating, but no more, for a scar to the neck and right leg is granted, subject to the laws and regulations governing the payment of monetary benefits. A compensable rating for a scar to the right leg is denied. A rating in excess of 10 percent for degenerative arthritis of the right acromioclavicular joint prior to September 18, 2010 is granted, subject to the laws and regulations governing the payment of monetary benefits. A rating in excess of 20 percent for degenerative arthritis of the right acromioclavicular joint since September 18, 2010 is denied. Service connection for degenerative arthritis to the right hip is denied. Service connection for a cervical spine disorder is denied. The motion to revise or reverse a December 20, 1987 rating decision assigning a noncompensable rating for a scar to the neck on the basis of CUE is denied. The motion to revise or reverse an October 24, 2007 rating decision assigning a 10 percent rating for degenerative arthritis of the right acromioclavicular joint on the basis of CUE is denied. ______________________________________________ M. TENNER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs