Citation Nr: 1310694 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 02-15 131 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to a rating in excess of 20 percent prior to May 13, 2010 and 40 percent from May 13, 2010 for residuals of a shell fragment wound (SFW), right neck with neuropathy, supraclavicular cutaneous nerve. 2. Entitlement to an initial rating in excess of 30 percent for residuals of a SFW to the neck, cervical spine. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD C. J. Houbeck, Counsel INTRODUCTION The Veteran had active service from May 1967 to March 1970. The appellant is the Veteran's custodian-in-fact. These matters originally came before the Board of Veterans' Appeals (Board) on appeal from a June 2000 rating determination of the Department of Veterans Affairs (VA) Regional Office (RO) located in Pittsburgh, Pennsylvania. The Board remanded these claims in January 2004, August 2007, July 2009, and April 2011 for additional development. At the time of the April 2011 Board determination, the issues of entitlement to service connection for impaired vision and entitlement to an evaluation in excess of 30 percent for cephalgia, left side, forehead, also were on appeal. The April 2011 Board determination granted entitlement to a 50 percent evaluation for cephalgia, which was promulgated by the Appeals Management Center (AMC), acting on behalf of the RO, in a May 2011 rating decision. The Board remanded the claim for entitlement to service connection for impaired vision and in a June 2012 rating decision, the AMC granted entitlement to service connection for nuclear sclerotic cataracts (previously claimed as impaired vision) and assigned a noncompensable evaluation effective from May 1, 2005. This decision was a complete grant of benefits with respect to this issue. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). Therefore, the issue is not currently on appeal before the Board. The June 2012 rating decision also increased the Veteran's rating for residuals, SFW, right neck, with neuropathy supraclavicular cutaneous nerve from 20 percent to 40 percent, effective from May 13, 2010. Regardless of the RO's actions, the issue remains before the Board because the increased rating was not a complete grant of the maximum benefits available. See AB v. Brown, 6 Vet. App. 35 (1993). The Board has not only reviewed the Veteran's physical claims file, but also his Virtual VA electronic claims file to ensure a total review of the evidence. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, his residuals of SFW, right neck with neuropathy, supraclavicular cutaneous nerve, throughout the appellate time period have manifested disability most closely approximating severe incomplete paralysis of the upper radicular group. 2. Throughout the appellate time period, the Veteran's residuals of SFW to the neck, cervical spine, have manifested disability most closely approximating severe cervical spine limitation of motion and/or severe impairment to Muscle Group XXIII. 3. Affording the Veteran the benefit of the doubt, his residuals of SFW, right anterior neck scar, throughout the appellate time period have manifested disability that includes primary symptoms of pain and tenderness. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 50 percent, but no more, for service-connected residuals of SFW, right neck with neuropathy, supraclavicular cutaneous nerve, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.41, 4.45, 4.56, 4.124a, Diagnostic Code (DC) 8599-8510 (2012). 2. The criteria for a disability rating greater than 30 percent for service-connected residuals of a SFW to the neck, cervical spine, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, DC 5290 (2002); 38 C.F.R. §§ 3.159, 3.321, 4.41, 4.45, 4.56, 4.73, DC 5323 (2012). 3. The criteria for a separate disability rating of 10 percent, but no more, for residuals of SFW, right anterior neck scar, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7 (2012); 38 C.F.R. § 4.118, DC 7804 (2002) and (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. 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). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and 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). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. VCAA letters dated in June 2001, September 2004, September 2007, January 2008, and January 2010 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1) (2012); Quartuccio, at 187. The Veteran was advised of the information and evidence necessary to substantiate his claims and the allocation of responsibilities between himself and VA. The letters informed him that additional information or evidence was needed to support his claims, and asked him to send the information or evidence to VA. See Pelegrini II, at 120-121. Several of the letters also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Furthermore, even if any notice deficiency is present in this case, the Board finds that any prejudice due to such error has been overcome in this case by the following: (1) based on the communications sent to the Veteran over the course of this appeal, the Veteran clearly has actual knowledge of the evidence the Veteran is required to submit in this case; and (2) based on the Veteran's contentions as well as the communications provided to the Veteran by VA, it is reasonable to expect that the Veteran understands what was needed to prevail. See Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009); Fenstermacher v. Phila. Nat'l Bank, 493 F.2d 333, 337 (3d Cir. 1974) ("[N]o error can be predicated on insufficiency of notice since its purpose had been served."). In order for the Court to be persuaded that no prejudice resulted from a notice error, "the record must demonstrate that, despite the error, the adjudication was nevertheless essentially fair." Dunlap v. Nicholson, 21 Vet. App. 112, 118 (2007). In this case, the Veteran has been continuously represented by an experienced Veteran Service Organization and has submitted argument in support of his claims. These arguments have referenced the applicable law and regulations necessary for a grant of increased ratings. Thus, the Board finds that the Veteran has actual knowledge as to the information and evidence necessary for him to prevail on his claims and is not prejudiced by a decision in this case. As such, a remand for additional notice would serve no useful purpose and would in no way benefit the Veteran. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the Veteran are to be avoided). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records are in the file. The Veteran has not indicated treatment with VA for the disabilities on appeal. Records were sought from the Social Security Administration (SSA); however, the claims file indicates that no records were available, possibly because the Veteran's petition for benefits was denied. VA has sent multiple letters to the Veteran requesting that he provide private treatment records directly to VA or authorization for VA to seek such records from his providers, but the Veteran has not responded to these requests. The Veteran has at no time referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claims. For increased rating claims, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran. Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the Veteran's disability, a VA examination must be conducted. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012). In this case, the RO provided the Veteran multiple VA examinations in May 2000. Pursuant to Board remand instructions, the Veteran also was afforded a VA examination in May 2010. The Veteran also was scheduled for VA examinations in February 2009 and September 2012, but failed to appear despite multiple attempts to notify him as to the time and location of the examinations. Additionally, the AMC sought VA medical opinions in June 2011 and November 2012. The Board finds the June 2011 and November 2012 VA medical opinions to be thorough and to have discussed the clinical findings and the Veteran's reported history as necessary to rate the disability under the applicable rating criteria. In addition, the examination reports of record, as well as the Veteran's own statements, have discussed the impact of the disabilities on his daily living. The Board is satisfied that the opinions fully considered the questions posed in the Board's April 2011 remand instructions and has provided an adequate explanation under these circumstances. The Board therefore finds that the June 2011 and November 2012 VA medical opinions, read in concert, were adequate. See Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007) (finding that an adequate opinion is one that is based upon consideration of the Veteran's prior medical history and examinations, describes the disability in sufficient detail, and includes a conclusion supported by an analysis that the Board can consider and weigh against contrary opinions). Based on the May 2010 VA examination report; the June 2011 and November 2012 VA medical opinions; the September 2007 and January 2010 letters to the Veteran, his custodian-in-fact, and representative; the completion of a VA Form 21-22 by the Veteran's representative; and the subsequent readjudication of the claims, the Board finds that there has been substantial compliance with its January 2004, August 2007, July 2009, and April 2011 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (a remand by the Board confers upon the claimant, as a matter of law, the right to compliance with the remand instructions, and imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). Separate DCs identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2012). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2012). Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to "staged" ratings to compensate him or her for times since filing his or her claim when his or her disability may have been more severe than at other times during the course of his or her appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). But where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibits symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14 (2012). The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). In general, evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. Functional loss may be due to the absence of part, or all, of the necessary bones, joints and muscles, or associated structures. It may also be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. See 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. See 38 C.F.R. § 4.45. The Board notes that the Veteran filed a claim for an increased rating greater than 20 percent for residuals of SFW, right neck with neuropathy, supraclavicular cutaneous nerve in December 1999. As noted above, in a June 2012 rating decision the 20 percent rating was increased to 40 percent, effective from May 13, 2010. The Veteran's neuropathy disability has been rated under DC 8599-8510 throughout the appellate time period. In this regard, the Board notes that hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2012). Here, the Veteran's service-connected neuropathy disability is rated as analogous to mild (20 percent) or moderate (40 percent) incomplete paralysis of the upper radicular group under DC 8510. 38 C.F.R. § 4.20 (2012). The Veteran is seeking an increased rating. In addition, the June 2000 rating decision granted entitlement to service connection for residuals of SFW to neck, cervical spine, and assigned a 30 percent rating, effective from December 27, 1999. The rating was assigned under DC 5323-5290, or as analogous to severe impairment to Muscle Group XXIII and severe limitation of motion of the cervical spine. The Veteran is seeking an increased rating. The Board notes that although the cervical spine disability was consistently rated as analogous to DC 5323-5290, the June 2012 rating decision listed the rating as solely pursuant to DC 5290. Based on the evidence of record, the Board finds that cervical spine disability is more appropriately evaluated based on analogy to severe impairment to Muscle Group XXIII and severe limitation of motion of the cervical spine. See Butts v. Brown, 5 Vet. App. 532, 538 (1993); Pernorio v. Derwinski, 2 Vet. App. 625 (1992). DC 8510 provides ratings for paralysis of the upper radicular group of nerves (fifth and sixth cervicals). DC 8510 provides that mild incomplete paralysis is rated 20 percent disabling on the major side and 20 percent on the minor side; moderate incomplete paralysis is rated 40 percent disabling on the major side and 30 percent on the minor side; and severe incomplete paralysis is rated 50 percent disabling on the major side and 40 percent on the minor side. Complete paralysis of the upper radicular group, with all shoulder and elbow movements lost or severely affected, hand and wrist movements not affected, is rated 70 percent disabling on the major side and 60 percent on the minor side. The criteria for evaluating spine disorders were revised during the pendency of this appeal. Prior to September 26, 2003, under DC 5290 (limitation of motion of the cervical spine), a 10 percent evaluation was assigned for slight limitation of motion, a 20 percent evaluation was assigned for moderate limitation of motion and a 30 percent evaluation was warranted for severe limitation of motion. See 38 C.F.R. § 4.71a, DC 5290 (2002). Also, for the period through September 22, 2002, under DC 5293, a 10 percent evaluation was warranted for mild intervertebral disc syndrome. A 20 percent evaluation was in order for moderate intervertebral disc syndrome, with recurring attacks. A 40 percent evaluation contemplated severe intervertebral disc syndrome, characterized by recurrent attacks with intermittent relief. A 60 percent evaluation was warranted for pronounced intervertebral disc syndrome, with persistent symptoms compatible with sciatic neuropathy which characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief. See 38 C.F.R. § 4.71a, DC 5293 (2002). Effective from September 26, 2003, disabilities of the cervical spine are to be rated under the General Rating Formula for Diseases and Injuries of the Spine. See 38 C.F.R. § 4.71a, DCs 5235-5243. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent disability rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate DC. Note (2) provides that, for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See also Plate V, 38 C.F.R. § 4.71a. Note (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4) provides that the rater is to round each range of motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6) provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. 38 C.F.R. § 4.71a. Spine conditions can also be rated under the criteria for intervertebral disc syndrome, DC 5243. As of September 22, 2002, DC 5243 provides a 10 percent disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for intervertebral disc syndrome where incapacitating episodes have a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted where incapacitating episodes have a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. "Incapacitating episodes" is defined in Note (1) as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (2) also allows the Veteran to be rated separately for musculoskeletal and neurological manifestations under appropriate DCs if it would result in a higher combined evaluation for the disability. The Board notes that gunshot and shrapnel wounds often result in impairment of muscle, bone, and/or nerve. Through and through wounds and other wounds of the deeper structures almost invariably destroy parts of muscle groups. See 38 C.F.R. § 4.47. Muscle Group damage is categorized as slight, moderate, moderately severe and/or severe and evaluated accordingly under 38 C.F.R. § 4.56. For rating purposes, the skeletal muscles of the body are divided into 23 muscle groups in 5 anatomical regions: 6 muscle groups for the shoulder girdle and arm (DCs 5301 through 5306); 3 muscle groups for the forearm and hand (DCs 5307 through 5309); 3 muscle groups for the foot and leg (DCs 5310 through 5312); 6 muscle groups for the pelvic girdle and thigh (DCs 5313 through 5318); and 5 muscle groups for the torso and neck (DCs 5319 through 5323). 38 C.F.R. § 4.55(b) (2012). The factors to be considered in evaluating disabilities residual to healed wounds involving muscle groups are set forth in 38 C.F.R. §§ 4.55, 4.56. A muscle injury evaluation will not be combined with a peripheral nerve paralysis evaluation of the same body part unless the injuries affect entirely different functions. 38 C.F.R. § 4.55(a). A through-and-through injury with muscle damage shall be evaluated as no less than a moderate injury for each group of muscles damaged. 38 C.F.R. § 4.56(b). For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, and impairment of coordination and uncertainty of movement. 38 C.F.R. § 4.56(c). The Board notes that the combined evaluation of Muscle Groups acting on a single unankylosed joint must be lower than the evaluation for unfavorable ankylosis of that joint, except in the case of Muscle Groups I and II acting upon the shoulder. 38 C.F.R. § 4.55(d). For compensable Muscle Group injuries which are in the same anatomical region but do not act on the same joint, the evaluation for the most severely injured Muscle Group will be increased by one level and used as the combined evaluation for the affected Muscle Groups. 38 C.F.R. § 4.55(e). For Muscle Group injuries in different anatomical regions which do not act upon ankylosed joints, each Muscle Group injury shall be separately rated and the ratings combined under the provisions of 38 C.F.R. § 4.25 (2012). 38 C.F.R. § 4.55(f). Evaluation of residuals of gunshot and shrapnel wound injuries includes consideration of resulting impairment to the muscles, bones, joints and/or nerves, as well as the deeper structures and residual symptomatic scarring. 38 C.F.R. §§ 4.44, 4.45, 4.47, 4.48, 4.49, 4.50, 4.51, 4.52, 4.53, 4.54 (2012). In considering the residuals of such injuries, it is essential to trace the medical-industrial history of the disabled person from the original injury, considering the nature of the injury and the attendant circumstances, and the requirements for, and the effect of, treatment over past periods, and the course of the recovery to date. 38 C.F.R. § 4.41 (2012). The criteria of 38 C.F.R. § 4.56 are guidelines for evaluating muscle injuries from gunshot wounds or other trauma, and the criteria are to be considered with all factors in the individual case. See Robertson v. Brown, 5 Vet. App. 70 (1993); Tropf v. Nicholson, 20 Vet. App. 317 (2006). Under 38 C.F.R. § 4.56, characteristics of a slight disability of affected muscles include a simple wound of muscle without debridement or infection, service department record of superficial wound with brief treatment and return to duty; with healing with good functional results. Objective findings include minimal scar, no evidence of fascial defect, atrophy, or impaired tonus; no impairment of function or metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56(d)(2) describes moderate disability of muscles: (i) Type of injury: through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without explosive effect of high velocity missile, residuals of debridement, or prolonged infection; (ii) History and complaint: service department record or other evidence of in-service treatment for the wound; record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability as defined in paragraph (c) of this section, particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles; (iii) Objective findings: entrance and (if present) exit scars, small or linear, indicating short track of missile through muscle tissue. Some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. A moderately severe disability of the muscles anticipates a through-and-through or deep open penetrating wound by a small high velocity missile or a large low-velocity missile, with debridement, prolonged infection, or sloughing of the soft parts, and intermuscular scarring. There should be a history of hospitalization for a prolonged period of treatment of the wound in service. A record of cardinal symptoms, such as loss of power, weakness, lowered threshold of fatigue, fatigue- pain, impairment of coordination and uncertainty of movement, and evidence of unemployability because of inability to keep up work requirements should be considered. Objective findings should include entrance and exit scars indicating a track of a missile through one or more muscle groups. Objective findings should also include indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared to a sound side. Tests of strength and endurance compared with sound side should demonstrate positive evidence of impairment. A severe muscle disability results from a through-and-through or deep-penetrating wound due to high velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, with intermuscular binding and cicatrization and service treatment records or other evidence showing hospitalization for a prolonged period for treatment of the wound. Objective findings may include a ragged, depressed and inherent scars indicating wide damage to muscle groups in missile track, palpation showing loss of deep fascia or muscle substance, or soft flabby muscles in wound area and abnormal swelling and hardening of muscles in contraction. Tests of strength, endurance, or coordinated movements compared with corresponding muscle of the uninjured side indicate severe impairment of function. In this case, the Veteran's residuals of a SFW, right neck with neuropathy, supraclavicular cutaneous nerve, have been rated as analogous to DC 5323. See 38 C.F.R. § 4.73, DC 5323 (2012). This DC applies to Muscle Group XXIII, which is involved in movements of the head and fixation of shoulder movements. Muscles in the Group include those of the side and back of the neck: suboccipital; lateral vertebral; and anterior vertebral muscles. The Veteran's service treatment records indicate that in July 1968 he was hit by an enemy explosive device and incurred metal fragment wounds to the right neck, right anterior chest wall, left foot, and left knee. There was a single metal fragment wound of the right neck with surrounding hematoma and a single metal fragment wound of the right anterior chest wall that had not penetrated the chest. The wounds were debrided and the neck wound primarily closed, while the other wounds were considered too small to require secondary closure. In less than two weeks the wounds were well healed, the Veteran was asymptomatic, and he was returned to full duty. About one week later, however, in early August 1968 the Veteran reported right shoulder pain and felt that he had not been ready to be released to full duty. On examination, there was tenderness in the right trapezoid border and right cranial process. The impression was cranial bursitis and the Veteran was declared fit for duty. A contemporaneous record indicated that there was not much spasm of the muscles and no pressure point noted. In February 1970, the Veteran complained of nerve sensation, specifically numbness, in the anterior right shoulder. The Veteran described the symptoms as feelings of pins and needles with numbness along the inferior aspect of the right clavicle 5 to 10 centimeters wide along the length of the clavicle. He also noted increasing muscle spasms in the area that occurred 3 to 4 times per day. The Veteran's March 1970 separation examination report noted a 1.5 inch long scar on the medial right neck and outlined the documentation in the service treatment records of paresthesias with point tenderness and anterior neck discomfort. Shortly after service, in June 1970 the Veteran was afforded a neurological and orthopedic examination for his neck and chest. He described marked areas of sensitivity on the right lower neck and over the collarbone, as well as on the front of the chest over the scarred area of wound. On examination, the right neck scar was 2 inches long. While it was nonadherent, there was an area of 4 to 6 inches over the supraclavicular, clavicular, and upper extreme of the thorax area that was markedly sensitive to touch and pressure, producing paresthesias and a pins and needles sensation. On examination, there was no paralysis, paresis, or atrophy. There was a sensory deficiency over the distribution of the supraclavicular cutaneous nerve, right lower neck that was markedly sensitive to the touch. Range of motion and strength testing were normal, and there was no evidence of deformity. During a June 1973 VA examination, the Veteran described his right shoulder as burning and stinging in bad weather. The shoulder was sensitive to the touch and the examiner noted that the Veteran was able to work with his current shoulder problems. There was an area of hyperesthesia on the anterior chest. The scar on the neck was noted to be faint, healed, non-tender, non-adherent, and not depressed. During a May 1989 VA examination, the Veteran reported neck and right shoulder pain. On examination, there was a 4 centimeter well-healed scar of the right neck that was very sensitive to the touch. There was full range of motion of the neck, but there was discomfort on extreme lateral flexion. The right shoulder had restricted range of motion. May 2000 x-rays of the cervical spine and right shoulder showed no evidence of fracture, subluxation, or dislocation. There were mild degenerative changes and foreign metallic bodies in the right supraclavicular area and the right side of the neck. A May 2000 VA examination report included reported numbness of the right upper extremity that was attributed to compression of the radicular nerve. This caused sharp pain once or twice per month. On examination, there was not much motor impairment, but there was noted abnormal sensation, specifically pinprick and touch sensations. There was pain on motion of the shoulder joint. A May 2000 VA neurological examination attributed the Veteran's headaches to neck problems. During another contemporaneous VA examination, the Veteran reported pain in the neck that radiated into the right shoulder. The examiner noted a scar on the anterior neck. There also was stiffness and weakness. He reported decreased range of motion, as well as fatigability and lack of endurance (primarily in the neck). Pain flare-ups occurred on an average of once per week and would last a day. On examination, there was objective evidence of painful range of motion, with pain the primary limitation on flare-up. There was significant weakness of the right shoulder with tenderness at the superior aspect and the axilla. The range of motion of the right shoulder was to 90 degrees of abduction, flexion to 80 degrees, internal rotation to 60 degrees and external rotation to 40 degrees. As to the cervical spine, there were muscle spasms and noted ankylosis, although there was no fixed deformity and problems were related to stiffness. In addition, range of motion of the cervical spine was 0 degrees of flexion, 3 degrees of extension, and right and left lateral flexion to 0 degrees. The Veteran was scheduled for another VA examination in July 2008, but he failed to appear. The Veteran was afforded another VA examination in May 2010. The Veteran indicated that he was interested in an increased rating for the scar on the right side of his neck, which he reported was very tender and painful with shaving or anyone touching the area. The Veteran had pain and stiffness in the neck that increased with range of motion. He denied numbness or tingling radiating from the neck down the arms, but did report numbness and tingling of the last 3 fingers of each hand that radiated up to the elbows. These symptoms had been occurring for 30 years. The Veteran denied incapacitating episodes associated with his neck problems. The neck and scar pain did affect activities of daily living, including dressing and chores around the house. The Veteran reported pain in the right shoulder with lifting, pushing, or pulling, with daily flare-ups of pain. He indicated there was tenderness of the right shoulder. On examination, there were two scars on the right anterior chest wall. The first was 2 centimeters, round, and flat, without elevation, depression, inflammation, ulceration, edema, adherence, decreased motion, or keloid formation. The second scar was 2 centimeters, round, and slightly puckered, without inflammation, ulceration, edema, adherence, decreased motion, or keloid formation. Both scars were stable and nontender. Bilateral shoulder strength was from 4 to 5 out of 5. There was tenderness to palpation over the anterior chest and right shoulder. As to the cervical spine, there was no tenderness or evidence of muscle spasms. Range of motion testing revealed forward flexion to 20 degrees, extension to 25 degrees, 10 degrees of right lateral bending, 10 degrees of left lateral bending, 60 degrees of left rotation, and 40 degrees of right rotation. There was pain on all movements. The scar on the Veteran's neck was 2 centimeters by 0.5 centimeters with a 1 millimeter depression. There was no inflammation, ulceration, edema, adherence, or keloid formation. The scar was very sensitive and tender to touch. The scar was stable. As to the right shoulder, there were no noted scars and range of motion was from 0 to 140 degrees of forward flexion, 0 to 60 degrees of abduction, and internal and external rotation from 0 to 90 degrees. There was pain throughout range of motion in all planes. There was no redness, warmth, or effusion in the right shoulder, but there was tenderness. X-rays showed shrapnel fragments superimposed on soft tissue of the right shoulder, as well as degenerative changes of the acromioclavicular and glenohumeral joints. X-rays of the cervical spine showed marked ossification of the anterior spinal ligament that was consistent with ankylosing spondylitis, vitamin A toxicity, or trauma. There also were shell fragments. Pursuant to the Board's direction, in June 2011 the AMC obtained a VA medical opinion. The opinion provider noted review of the claims file. She noted that at the time of the last VA examination, the Veteran did not have significant upper extremity limitations with respect to nerve innervations of the upper extremities, to include the supraclavicular cutaneous nerve. The Veteran did have pain and decreased range of motion. X-rays showed no significant structural involvement that would affect shoulder functioning as a result of the embedded shrapnel. There was no paralysis as a result of the shrapnel wounds, but the neuropathy present appeared to be moderate to severe. The muscle groups involved would be I, II, III, and XXIII. There did not appear to be joint involvement in the shrapnel embedded in the soft tissue of the right shoulder. The effect on the muscles of the right shoulder would be slight to moderate. The Veteran was scheduled for another VA examination in September 2012, but failed to attend, despite messages over the course of 5 days. As such, the AMC obtained a November 2012 VA medical opinion. The reviewer reiterated many of the findings and conclusions of the June 2011 medical opinion, including that the effect on the Veteran's associated neuropathy was moderate to severe and affected the muscles in a slight to moderate manner. As to whether the neuropathy of the supraclavicular cutaneous nerve produced complete or incomplete paralysis, the reviewer failed to provide a definitive opinion; however, she cited to findings of the May 2010 VA examination report that the Veteran had little to no residual effects on the right or left arm and hands secondary to the shrapnel in the right side of the neck. The Veteran had near normal range of motion of the right lower extremity joints; neurovascular and muscle testing were within normal limits; and there was no neuralgia or neuritis associated with the right lower arm, wrist, or hand as any problems were unrelated to the innervations of the supraclavicular cutaneous nerve. As to muscle involvement, the reviewer concluded that it was less likely than not that there was residual muscle involvement of muscle groups I, II, III, and XXIII. The rationale for this opinion, however, somewhat confusingly discussed only the right lower arm, wrist, and hand. Residuals of SFW, Right Neck with Neuropathy, Supraclavicular Cutaneous Nerve Affording the Veteran the benefit of the doubt, the Board concludes that the objective medical evidence and the Veteran's statements regarding his symptomatology show disability that more nearly approximates that which warrants the assignment of a 50 percent disability rating throughout the appellate time period. See 38 C.F.R. § 4.7 (2012). As noted above, the June 2011 and November 2012 VA medical opinions both noted that the Veteran's neuropathy symptoms involving the supraclavicular cutaneous nerve constituted incomplete paralysis that was moderate to severe in nature and affecting the major extremity. Although the Board recognizes that the AMC based the increased rating to 40 percent for neuropathy involving the supraclavicular cutaneous nerve on the conclusion that the Veteran's disability more closely approximated moderate incomplete paralysis, given the VA medical reviewers' notations that the neuropathy was moderate to severe in nature the Board affords the Veteran the benefit of the doubt that his neuropathy disability is severe in nature. As to the AMC's assigned effective date of May 2010 for the increased 40 percent rating, the Board notes that the Veteran's range of motion of the right shoulder actually was significantly worse during his May 2000 VA examination than during the May 2010 VA examination. Moreover, during the May 2000 VA examination there was significant weakness and tenderness of the right shoulder, while there was only slight weakness of the right shoulder muscles on examination in May 2010. Thus, the Board can determine no basis not to apply the findings of the June 2011 and November 2012 VA medical opinions of moderate to severe neuropathy symptoms associated with the right shoulder to the entire appellate time period. In light of the foregoing, the Board finds that the Veteran's symptomatology is most consistent with and analogous to the criteria for a 50 percent rating pursuant to DC 8599-8510 and, as such, the Board affords the Veteran the benefit of the doubt and finds that a 50 percent rating is warranted for the entire appellate time period. The Board concludes that a rating greater than 50 percent under DC 8599-8510 is not warranted. In reaching that conclusion, the Board notes that the medical and lay evidence of record does not indicate that the Veteran has complete paralysis, with all shoulder and elbow movements lost or severely affected. The Veteran certainly has decreased motion of the right shoulder in all planes, but he retains the ability to raise the right arm at least to the level of the shoulder and retains substantial range of motion in the other planes. The June 2011 and November 2012 VA medical opinions also found that the Veteran had incomplete paralysis, rather than complete paralysis of his right shoulder. Based on the foregoing, the Board concludes that a rating greater than 50 percent for neuropathy of the supraclavicular cutaneous nerve is not warranted under DC 8599-8510. A higher or separate rating also is unavailable through any other DC. DCs 5301, 5302, and 5303 for Muscle Groups I, II, and III, respectively, involve the various muscle groups of the shoulder. However, the maximum disability rating permitted under each DC is 40 percent. The Veteran's right shoulder is not ankylosed, so the requirements of 38 C.F.R. § 4.55(d) are not met. A rating greater than 50 percent also is not available under DCs 5200-5203. See 38 C.F.R. § 4.71a. Thus, a 50 percent rating, but no greater, is warranted for the entire appellate time period for residuals of a SFW, right neck with neuropathy, supraclavicular cutaneous nerve. As noted, the Board has considered whether staged ratings are warranted, but affording the Veteran the benefit of the doubt the Board will treat the above disability as having been severe throughout the entire appellate time period and, as such, staged ratings are not warranted. See Hart, 21 Vet. App. at 505. Residuals of SFW to the Neck, Cervical Spine Based on the evidence of record, the Board concludes that a rating greater than 30 percent for residuals of SFW to the neck, cervical spine, is not warranted. The currently assigned 30 percent rating is the maximum permitted under either DC 5290 or 5323. A higher rating also is not warranted under any other DC. From September 2003, the Board has considered whether a higher rating could be assigned under the General Rating Formula for Disease and Injuries of the Spine. Although a 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine, the Veteran's cervical spine is not ankylosed. The Board acknowledges that the Veteran had almost no range of motion at the time of the May 2000 VA examination; however, the examiner at the time noted that the limited range of motion was due to stiffness and that there was not ankylosis. This finding is supported by prior and subsequent evidence showing significant, though limited, range of motion of the cervical spine. The above notwithstanding, the Board concludes that a separate 10 percent rating is warranted encompassing the entire appellate time period for the Veteran's scar of the right anterior neck. During the pendency of this appeal, the diagnostic criteria for evaluating skin disorders, including 38 C.F.R. § 4.118, DCs 7800-7805, were revised effective August 30, 2002 and again from October 23, 2008. As to the second amendment, effective from October 23, 2008, the amendments are only effective for claims filed on or after October 23, 2008, although a claimant may request consideration under the amended criteria. In this case, the Veteran has not requested such consideration. The revised criteria, therefore, are not applicable to the appeal before the Board. As to the August 30, 2002 amendment, the Veteran is entitled to the application of the version of the regulation that is more favorable to him from the effective date of the new criteria, but only the former criteria are to be applied for the period prior to the effective date of the new criteria. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003 (Nov. 19, 2003). Under the provisions of 38 C.F.R. § 4.118, DC 7804 both prior and subsequent to August 30, 2002, DC 7804 provided a maximum rating of 10 percent for superficial scars painful on examination. The provisions prior to August 30, 2002 also added the notation of a scar that was tender on objective demonstration. Note (1) to DC 7804, from August 30, 2002, provided that a superficial scar was one not associated with underlying soft tissue damage. Note (2) from August 30, 2002 and the sole Note prior to August 30, 2002, provided that a 10-percent rating would be assigned for a scar on the tip of a finger or toe even though amputation of the part would not warrant a compensable rating. 38 C.F.R. § 4.118 (2002) and (2008). DC 7804, from August 30, 2002, also directed the rater to see 38 C.F.R. § 4.68 (amputation rule). 38 C.F.R. § 4.118 (2008). Because 38 C.F.R. § 4.56 (setting forth criteria for evaluation of muscle disability) does not contain any provision regarding the painfulness of a scar that is a component of a muscle disability, the symptomatology used to rate a "[s]uperficial [and] painful" scar (38 C.F.R. § 4.118, DC 7804) is not "duplicative of" or "overlapping with" the muscle-injury evaluation criterion that is contained in 38 C.F.R. § 4.56(d) (classification of muscle injuries as slight, moderate, moderately severe, and severe). Esteban v. Principi, 6 Vet. App. 259, 261 (1994). Thus, obtaining a rating in accordance with 38 C.F.R. § 4.56(d) does not necessarily preclude a separate scar rating under 38 C.F.R. § 4.118, DC 7804. Id. However, as noted above, from August 30, 2002, Note (1) of DC 7804 limits the application of that rating to scars that are "superficial [and] painful on examination" but that are "not associated with underlying soft tissue damage." 38 C.F.R. § 4.118, DC 7804, Note (1). Hence, to the extent that the Veteran's scars are painful and are not associated with underlying soft tissue damage, the Veteran may be rated under both 38 C.F.R. § 4.56(d) and 4.118, DC 7804. Jones v. Principi, 18 Vet. App. 248, 260 (2004). Conversely, if a missile injury results in a scar with associated underlying soft tissue damage, then any resultant scar that is painful may not receive a separate compensable rating for a painful scar under 38 C.F.R. § 4.118, DC 7804. Id. In this case, throughout the appellate time period, the Veteran consistently has reported pain associated with his scar, which was confirmed on multiple VA examinations. While the Board notes that the May 2000 examination report did not note a painful scar, such was reported on VA examination prior to the appellate time period and in subsequent VA examination. As to whether, the neck scar involved underlying soft tissue damage, the May 2010 VA examiner specifically found that the scar was nonadherent and that there was no significant underlying tissue damage. As there is no underlying soft tissue damage associated with the right anterior neck scar, a 10 percent rating under DC 7804 can be assigned. As such, the Board concludes that a 10 percent rating is warranted for the entire appellate time period under DC 7804 for his painful right anterior neck scar. No other DC applicable to scars (either prior or subsequent to August 30, 2002) would render a higher rating in this case. Prior to August 30, 2002, DCs 7801 (third degree burn scars), 7802 (second degree burn scars), and 7803 (superficial scars that are poorly nourished and with repeated ulceration) do not apply here given the medical evidence indicated above. See 38 C.F.R. § 4.118, DCs 7801-7803 (2002). From August 30, 2002, DC 7801 (deep or causing limitation of motion scars other than to the head, face, or neck), DC 7802 (superficial and not causing limited motion scars other than to the head, face, or neck), and 7803 (unstable superficial scars) do not apply here given the medical evidence indicated above. See 38 C.F.R. § 4.118, DCs 7801-7803 (2008). Under the provisions in effect both prior and subsequent to August 30, 2002, DC 7805 provided for a rating for scars based on limitation of motion and the Veteran does not have limited motion in this case due to his neck scar. The criteria for DC 7800 prior to August 30, 2002 provided a noncompensable rating for slightly disfiguring scars of the head, face, or neck; a 10 percent rating for moderately disfiguring scars; a 30 percent rating for severely disfiguring scars, especially those producing a marked and unsightly deformity of one side of the face or marked or repugnant bilateral disfigurement; and a 50 percent rating for complete or exceptionally repugnant deformity of one side of face or marked or repugnant bilateral disfigurement. See 38 C.F.R. § 4.118, DC 7800 (2002). The criteria for DC 7800 from August 30, 2002 provided ratings for disfigurement of the head, face, or neck. Note (1) to DC 7800 provided that the 8 characteristics of disfigurement, for purposes of rating under 38 C.F.R. § 4.118, were: (1) scar is 5 or more inches (13 or more cm.) in length; (2) scar is at least one-quarter inch (0.6 cm.) wide at the widest part; (3) surface contour of scar is elevated or depressed on palpation; (4) scar is adherent to underlying tissue; (5) skin is hypo-or hyper-pigmented in an area exceeding six square inches (39 sq. cm.); (6) skin texture is abnormal (irregular, atrophic, shiny, scaly, etc.) in an area exceeding six square inches (39 sq. cm.); (7) underlying soft tissue is missing in an area exceeding six square inches (39 sq. cm.); (8) skin is indurated and inflexible in an area exceeding six square inches (39 sq. cm.). From August 30, 2002, DC 7800 provided that a skin disorder with one characteristic of disfigurement of the head, face, or neck was rated 10 percent disabling. A skin disorder of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of one feature or paired set of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with two or three characteristics of disfigurement, was rated 30 percent disabling. A skin disorder of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of two features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with four or five characteristics of disfigurement, was rated 50 percent disabling. A skin disorder of the head, face, or neck with visible or palpable tissue loss and either gross distortion or asymmetry of three or more features or paired sets of features (nose, chin, forehead, eyes (including eyelids), ears (auricles), cheeks, lips), or; with six or more characteristics of disfigurement, was rated 80 percent disabling. Note (2) to DC 7800 provided that tissue loss of the auricle was to be rated under DC 6207 (loss of auricle), and anatomical loss of the eye under DC 6061 (anatomical loss of both eyes) or DC 6063 (anatomical loss of one eye), as appropriate. Note (3) provided that unretouched color photographs were to be taken into consideration when rating under these criteria. See 38 C.F.R. § 4.118, DC 7800 (2008). In this case, the Veteran's neck scar is lighter than the surrounding skin, but there is no swelling, keloid formations, ulceration, or other problems that could constitute a marked or unsightly deformity that would correspond to a severely disfiguring scar for the purpose of an increased rating under the provisions in effect prior to August 30, 2002. Indeed, while the Veteran has reported that the scar is tender and painful, he has not asserted that it is disfiguring. As to the post-August 30, 2002 regulations, the Veteran had only one characteristic of disfigurement (depression of 1 mm.). As such, a rating greater than 10 percent is not warranted under DC 7800 under the applicable provisions prior or subsequent to August 30, 2002. As noted previously, additional factors that could provide a basis for an increase have also been considered; however, the evidence does not show that the Veteran has functional loss beyond that currently compensated. 38 C.F.R. §§ 4.40, 4.45; DeLuca, 8 Vet. App. at 202. In that regard, the Court has held that "pain itself does not rise to the level of functional loss as contemplated by VA regulations applicable to the musculoskeletal system." Mitchell v. Shinseki, 25 Vet. App. 32, 36-38 (2011). Rather, pain, may result in functional loss, but only if it limits the ability "to perform the normal working movements of the body with normal excursion, strength, speed, coordination [, or] endurance." Id, quoting 38 C.F.R. § 4.40. The Board has considered the Veteran's reports of pain and stiffness and testimony that he has intermittent flare-ups. While the Board does not doubt that the Veteran has occasional flare-ups, even so, it is not shown that such results in functional loss comparable to ankylosis of the cervical spine. As noted above, the Veteran retains the ability to use his neck and while stiffness may significantly limit range of motion on occasion, this is not a permanent condition such that it could be equated to ankylosis of the entire cervical spine. Based on the foregoing evidence of record, the Board concludes that staged ratings for either the cervical spine disability or the anterior neck scar are not warranted. See Fenderson, 12 Vet. App. at 119. In summary, the Board concludes that the evidence supports an increased rating of 50 percent for residuals of a SFW, right neck with neuropathy, supraclavicular cutaneous nerve, but that the preponderance of the evidence is against the claim for a rating higher than 50 percent. In addition, a rating greater than 30 percent for residuals of a SFW to the neck, cervical spine, is not warranted, but a separate 10 percent rating is warranted for the entire appellate time period for the Veteran's scar of the right anterior neck. As shown above, and as required by Schafrath, 1 Vet. App. at 594, the Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran. Additional Considerations The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluations for the service-connected residuals of a SFW, right neck with neuropathy, supraclavicular cutaneous nerve; residuals of a SFW to the neck, cervical spine; and scar of the right anterior neck are inadequate. A comparison between the level of severity and symptomatology of the Veteran's disabilities with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. With respect to the Veteran's neuropathy, the Veteran reports pain, tenderness, numbness, and limited motion in the right shoulder. The current 50 percent rating contemplates these and other symptoms. As to the cervical neck disability, the Veteran experiences primarily pain, stiffness, and limited motion. The current 30 percent rating contemplates these and other symptoms. As to the neck scar, the Veteran reports pain and tenderness. The current 10 percent rating contemplates these symptoms. Thus, the Veteran's current schedular ratings under DCs 8599-8510, 5323-5290, and 7804 are adequate to fully compensate him for his disabilities on appeal. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. Finally, given that a 100 percent total schedular evaluation is in effect in this case, consideration for a total disability evaluation based upon individual unemployability is not warranted here. Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER Entitlement to an increased rating of 50 percent, but no greater, for residuals of a shell fragment wound (SFW), right neck with neuropathy, supraclavicular cutaneous nerve, is granted throughout the appellate time period, subject to the laws and regulations controlling the award of monetary benefits. Entitlement to an initial rating in excess of 30 percent for residuals of a SFW to the neck, cervical spine, is denied. Entitlement to a separate rating of 10 percent, but no greater, for residuals of SFW, right anterior neck scar, is granted throughout the appellate time period, subject to the laws and regulations controlling the award of monetary benefits. ____________________________________________ A. C. MACKENZIE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs