Citation Nr: 20042292 Decision Date: 06/22/20 Archive Date: 06/22/20 DOCKET NO. 15-12 454 DATE: June 22, 2020 ORDER Service connection for chronic right shoulder disability is granted. An initial compensable disability rating for bruxism is denied. From August 14, 2011, to September 16, 2019, an initial 10 percent rating for a left knee disability is granted. From September 16, 2019, a rating in excess of 10 percent for a left knee disability is denied. From August 14, 2011, to September 16, 2019, an initial 10 percent rating for a right knee disability is granted. From September 16, 2019, a rating in excess of 10 percent for a right knee disability denied. From August 14, 2011, to September 16, 2019, an initial 10 percent rating for a left ankle disability is granted. From September 16, 2019, a rating in excess of 10 percent for a left ankle disability is denied. From August 14, 2011, to September 16, 2019, an initial 10 percent rating for a right ankle disability is granted. From September 16, 2019, a rating in excess of 10 percent for a right ankle disability is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. Resolving reasonable doubt in the Veteran’s favor, there is an approximate balance of positive and negative evidence that his chronic right shoulder disability is related to his active service. 2. The Veteran’s bruxism is manifested by teeth grinding, pain and popping with temporomandibular interincisal range greater than 34 millimeters (mm) and lateral excursion greater than 4 mm. 3. From August 14, 2011, to September 16, 2019, the Veteran’s left knee disability caused pain, but did not result in flexion functionally limited to 30 degrees or less, extension functionally limited to 15 degrees or more, ankylosis, a dislocated or removed symptomatic meniscus, an impairment of the tibia/fibula, or genu recurvatum. 4. From September 16, 2019, the Veteran’s left knee disability is not shown to result in flexion functionally limited to 30 degrees or less, extension functionally limited to 15 degrees or more, ankylosis, ankylosis, a dislocated or removed symptomatic meniscus, an impairment of the tibia/fibula, or genu recurvatum. 5. From August 14, 2011, to September 16, 2019, the Veteran’s right knee disability caused pain, but did not result in flexion functionally limited to 30 degrees or less, extension functionally limited to 15 degrees or more, ankylosis, a dislocated or removed symptomatic meniscus, an impairment of the tibia/fibula, or genu recurvatum. 6. From September 16, 2019, the Veteran’s right knee disability is not shown to result in flexion functionally limited to 30 degrees or less, extension functionally limited to 15 degrees or more, ankylosis, a dislocated or removed symptomatic meniscus, an impairment of the tibia/fibula, or genu recurvatum. 7. From August 14, 2011, to September 16, 2019, the Veteran’s left ankle disability caused pain, but did not result in any ankylosis, malunion, astragalectomy, or marked limitation of motion. 8. From September 16, 2019, the Veteran’s left ankle disability is manifested by no more than moderate limitation of motion; marked limitation of motion is not shown and there is no clinical evidence of ankylosis, malunion, or astragalectomy. 9. From August 14, 2011, to September 16, 2019, the Veteran’s right ankle disability caused pain, but did not result in any ankylosis, malunion, astragalectomy, or marked limitation of motion. 10. From September 16, 2019, the Veteran’s right ankle disability is manifested by no more than moderate limitation of motion; marked limitation of motion is not shown and there is no clinical evidence of ankylosis, malunion, or astragalectomy. CONCLUSIONS OF LAW 1. The criteria for service connection for chronic right shoulder disability have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for a compensable rating for bruxism have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.150, Diagnostic Code 9950. 3. From August 14, 2011, to September 16, 2019, the criteria for an initial 10 percent rating for left knee disability have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5256-63. 4. From September 16, 2019, the criteria for a rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5256-63. 5. From August 14, 2011, to September 16, 2019, the criteria for an initial 10 percent rating for a right knee disability have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5256-63. 6. From September 16, 2019, the criteria for a rating in excess of 10 percent for a right knee disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5256-63. 7. From August 14, 2011, to September 16, 2019, the criteria for an initial 10 percent rating for a left ankle disability have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5270-74. 8. From September 16, 2019, the criteria for a rating in excess of 10 percent for a left ankle disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5270-74. 9. From August 14, 2011, to September 16, 2019, the criteria for an initial 10 percent rating for a right ankle disability have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5270-74. 10. From September 16, 2019, the criteria for a rating in excess of 10 percent for a right ankle disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Codes 5270-74. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 2007 to August 2011. He was awarded the Combat Action Ribbon. The case was remanded by the Board in September 2018 for additional development. At that time, the Board noted the issues of entitlement to service connection for a sinus condition and vertigo had been raised by the record and referred to the Agency of Original Jurisdiction (AOJ). However, there is no indication that action has been taken with respect to these issues, so they are again referred to the AOJ for appropriate action. 38 C.F.R.§ 19.9(b). In May 2017, the RO granted service connection for erectile dysfunction. In March 2020, the RO granted service connection for a hiatal hernia, gastrointestinal reflux disease, and a left shoulder disability. This represents a complete grant of his appeal in regard to these claims. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). These issues are no longer before the Board. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may also be established on a presumptive basis for a Persian Gulf Veteran who exhibits objective indications of a qualifying chronic disability either during active service in the Southwest Asia Theater of operations during the Persian Gulf War, or to a degree of 10 percent or more not later than December 31, 2021, and which by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 U.S.C. §§ 1117, 1118; 38 C.F.R. § 3.317 (a)(1). Certain chronic diseases are subject to presumptive service connection if manifest to a compensable degree within one year from separation from service even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1112, 1113; 38 C.F.R. §§ 3.307 (a)(3), 3.309(a). Continuity of symptomatology may also provide a basis for a grant of service connection for those diseases defined as “chronic” by VA. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, any reasonable doubt is resolved in favor of the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran’s DD-214 confirms his active military service in the Southwest Asia Theater of operations during the Persian Gulf War. 38 C.F.R. § 3.317 (e)(1)(2). As such, the Persian Gulf statutory and regulatory provisions may be applicable in this case. Right Shoulder Disability The Veteran asserts his chronic right shoulder disability is the result of carrying heavy equipment during service. Service treatment records fail to reveal any significant signs or symptoms that can be construed as related to chronic right shoulder problems, including at separation. However, where it is established that a veteran served in combat and that veteran asserts service connection for injuries or disease incurred or aggravated in combat, not only is the combat injury presumed, but, absent evidence to the contrary, so is any disability incurred during the combat. 38 U.S.C. § 1154(b); 38 C.F.R. § 3.304(d). See Reeves v. Shinseki, 682 F.3d 988, 998-1000 (Fed. Cir. 2012). After carefully reviewing and weighing the competent medical evidence of record, the Board is satisfied that it is in at least approximate balance as to whether the Veteran has a chronic right shoulder disability related to service. The unfavorable evidence consists of service treatment records, which are negative for right shoulder complaints or symptomatology. There is also no indication that the Veteran needed medical care due to any right shoulder symptoms in the immediate years after his separation from service. However, the record also contains favorable evidence. Because the Veteran was awarded a combat medal, to the extent he is alleging a combat injury, his reports of in-service shoulder injury are competent and credible. 38 U.S.C. § 1154(b); See Reeves, 682 F.3d 988, 998-1000. In addition, the 2019 VA examiner concluded that it was at least as likely as not that the Veteran’s chronic shoulder disability started in service after constantly lifting heavy armor. In this case, there is no adequate reason to reject evidence that is favorable to the Veteran. Monzingo v. Shinseki, 26 Vet. App. 97, 106 (2012). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997); Daye v. Nicholson, 20 Vet. App. 512 (2006). Moreover, there are no medical opinions to the contrary. In this case, any doubt that remains is resolved in favor of the Veteran and service connection for chronic right shoulder disability is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased Ratings Disability ratings are determined by comparing a veteran’s present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Bruxism The Veteran’s bruxism is currently rated as 0 percent (noncompensable) disabling under Diagnostic Code 9905. He asserts that he is entitled to a compensable rating. The applicable rating criteria for dental and oral conditions under 38 C.F.R. § 4.150 were amended, effective on September 10, 2017, and the “new” schedular criteria are applicable as of that date. See 82 Fed. Reg. 36,080 (August 3, 2017). By law, amendments to regulations cannot be construed to have retroactive effect unless their language requires such a result. See Kuzma v. Principi, 341 F.3d 1327, 1328 (2003). There is no such language in the amendment to the regulation at issue in this case. Consequently, the Board will evaluate the Veteran’s claim under the old regulation for the entire appeal period and apply the new regulation for the period on and after September 10, 2017. Prior to September 2017, under Diagnostic Code 9905, a 10 percent rating was assigned for limited motion of the temporomandibular articulation with an inter-incisal range of 31 to 40 mm or lateral excursion of 0 to 4 mm; a 20 percent rating was assigned for an incisal range of 21 to 30 mm; a 30 percent rating was assigned for limited motion of the temporomandibular articulation with an inter-incisal range of 11 to 20 mm; a 40 percent rating was assigned for an inter-incisal range of 0 to 10 mm. A note to Diagnostic Code 9905 provides that ratings for limited inter-incisal movement shall not be separately rated, for combination, with ratings for limited lateral excursion. Under the current schedular criteria, a 10 percent rating is assigned for limited motion of the temporomandibular articulation with inter-incisal range of 30 to 34 mm of maximum unassisted vertical opening without dietary restrictions to mechanically altered foods; or lateral excursion range of motion of 0 to 4 mm. A 20 percent rating is assigned for inter-incisal range of 30 to 34 mm with dietary restrictions to soft and semi-solid foods; or inter-incisal range of 21 to 29 mm without dietary restrictions to mechanically altered foods. A 30 percent rating is assigned for inter-incisal range of 30 to 34 mm of maximum unassisted vertical opening with dietary restrictions to full liquid and pureed foods; inter-incisal range of 21 to 29 mm with dietary restrictions to soft and semi-solid foods; or inter-incisal range of 11 to 20 mm without dietary restrictions to mechanically altered foods. A 40 percent rating is assigned for inter-incisal range of 21 to 29 mm with dietary restrictions to full liquid and pureed foods; inter-incisal range of 11 to 20 mm with dietary restrictions to all mechanically altered foods; or inter-incisal range of 0 to 10 mm range without dietary restrictions to mechanically altered foods. A 50 percent rating is for inter-incisal range of 0 to 10 mm of maximum unassisted vertical opening with dietary restrictions to all mechanically altered foods. Ratings for limited inter-incisal movement are not combined with ratings for limited lateral excursion. For VA compensation purposes, the normal maximum unassisted range of vertical jaw opening is from 35 to 50 mm. For VA compensation purposes, mechanically altered foods are defined as altered by blending, chopping, grinding or mashing so that they are easy to chew and swallow. There are four levels of mechanically altered foods: full liquid, puree, soft, and semisolid foods. To warrant elevation based on mechanically altered foods, the use of texture-modified diets must be recorded or verified by a physician. Relevant evidence includes a May 2012 VA examination report. The Veteran reported a history of teeth grinding during sleep pain, jaw soreness, and popping of the right TMJ on left lateral excursion. The pain is worse in the morning but goes away after movement of jaw functions. On examination there was an audible pop of the right pre-auricular region on left lateral movement with instant pain. The Veteran did not have any other dental or oral conditions and no evidence of mouth injury resulting in impairment of mastication or speech. Imaging studies showed no positive findings or other significant results. The disability did not impact the Veteran’s ability to work. Subsequently dated VA clinical records do not show greater limitation of motion or impairment than the examination findings. When examined by VA in September 2019, the Veteran complained of teeth grinding teeth at night, lock jaw, teeth pain, and sensitivity to hot and cold. He used bite/mouth guards and over-the-counter pain medications. He denied having flare-ups, but he did note chewy foods/snacks caused “locking” of his jaw. Range of motion for inter-incisal distance was greater than 34 mm and right and left lateral excursion were greater than 4 mm without pain. There was no pain with chewing and no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue. There was no objective evidence of crepitus or clicking. The Veteran was able to perform repetitive-use testing with no change in inter-incisal distance. There were no additional factors contributing to disability. There were no dietary restrictions due to the Veteran’s bruxism and no other pertinent physical findings, complication, conditions, signs or symptoms. Under both the former and revised rating criteria, a compensable evaluation is not warranted because there is no objective evidence of inter-incisal range of motion of less than 34 mm or lateral excursion less than 4mm. Also, there is nothing in record that documents dietary restrictions. In addition, the clinical findings from the VA examinations show the Veteran has complained of ongoing symptomology of grinding his teeth while sleeping but do not suggest problems that would result in interincisal range of that more closely approximates 31 to 40 mm due to pain or during flare-up, so as to warrant the next higher rating of 10 percent under Diagnostic Code 9905. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). The only other possibilities for a higher disability rating are not applicable to the Veteran’s case or do not offer a higher disability rating. 38 C.F.R. § 4.150, Diagnostic Codes 9901-04, 9908-18. Accordingly, a compensable disability rating is not warranted under either the old or amended version of Diagnostic Code 9905, and the Veteran’s claim is denied. Bilateral Knee Disabilities The Veteran’s bilateral knee disabilities are evaluated at noncompensable rates prior to September 16, 2019, and 10 percent afterwards under Diagnostic Code 5260 for limited leg flexion. The Veteran asserts that he is entitled to higher ratings. Diagnostic Code 5260 evaluates limitation of knee flexion. A noncompensable rating is assigned for extension limited to 60 degrees. A 10 percent rating is assigned for flexion limited to 45 degrees. A 20 percent rating is assigned for flexion limited to 30 degrees. A 30 percent rating is assigned for flexion limited to 15 degrees. Diagnostic Code 5261 evaluates limitation of knee extension. A noncompensable rating is assigned for extension limited to 5 degrees. A 10 percent rating is assigned for extension limited to 10 degrees. A 20 percent rating is assigned for extension limited to 15 degrees. A 30 percent rating is assigned for extension limited to 20 degrees. A 40 percent rating is assigned for extension limited to 30 degrees. A 50 percent rating is assigned for extension limited to 45 degrees. Of note, separate compensable ratings may be assigned for limitation of flexion and for limitation of extension, without violating the rule against pyramiding. See 38 C.F.R. § 4.14. Diagnostic Code 5256 evaluates ankylosis of the knee, Diagnostic Code evaluates recurrent subluxation or lateral instability, Diagnostic Codes 5258 and 5259 evaluate impairments of the semilunar cartilage, Diagnostic Code 5262 evaluates impairment of the tibia and fibula, and Diagnostic Code 5263 evaluates genu recurvatum. The medical record does not document any of these conditions. Therefore, these Diagnostic Codes are not applicable and will not be discussed further. Normal ranges of motion of the knee are to 0 degrees in extension, and to 140 degrees in flexion. 38 C.F.R. § 4.71, Plate II. Evidence relevant to the severity of the Veteran’s service-connected knee strain includes an April 2012 VA examination report. The Veteran reported that both knees hurt, but no flare-ups. Range of motion testing showed 140 degrees of flexion and full extension for both knees with no objective evidence of pain or additional loss of motion after repetitive testing. Course crepitation caused functional loss/impairment. Muscle strength testing was 5/5 for both knees and joint stability testing was normal, with no anterior, posterior, or medial-lateral instability. There were no additional factors contributing to disability including recurrent patellar subluxation/dislocation, shin splints (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment or meniscal conditions. The Veteran did not require any assistive devices to walk and imaging studies were negative for arthritis. The Veteran’s knees did not impact his ability to perform any type of occupational tasks. Subsequently dated treatment records are not materially different from those reported on prior VA examination. During an outpatient evaluation in 2015 the Veteran reported constant knee pain along with clicking, popping, and locking up that was worse when using stairs. Examination of the knees showed no significant swelling or effusion. Range of motion was good with near full extension and flexion to 120 degrees. There was no varus or valgus instability and no medial or lateral joint line tenderness to palpation. The examiner could translate the patella laterally about 1 quadrant and there was no apprehension. Anterior drawer and Lachman testing were both negative and both lower extremities were neurovascularly intact. X-rays of the knees showed some underlying chondromalacia. The current 10 percent evaluations are based on findings from a September 2019 VA examination. The Veteran reported bilateral knee pain, locking up, stiffness, and “popping sounds.” He described functional loss/impairment due to flareups of increased pain and stiffness which caused an inability to perform his usual activities. On examination range of motion testing showed 140 degrees of flexion and full extension for both knees with no objective evidence of pain. Passive range of motion testing was the same as active range of motion and there was no evidence of pain with weight bearing or objective evidence of crepitus. Pain, fatigue, and weakness further limited flexion to 135 degrees. There were no additional factors contributing to disability. Muscle strength testing was 5/5 with no reduction in strength or muscle atrophy. Joint stability testing was normal with no recurrent subluxation, lateral instability, or recurrent effusion. There was no evidence of ankylosis, recurrent patellar dislocation shin splints (medial tibial stress syndrome), stress fractures, chronic exertional compartment syndrome, or any other tibial and/or fibular impairment, meniscal conditions, or surgical scars. The Veteran regularly used a compression braces and the examiner noted findings of chondromalacia of both knees, which did not impact his ability to perform any type of occupational tasks. Prior to September 16. 2019, based on the preceding evidence, the Veteran is entitled to 10 percent ratings in each of his knees based on his experiencing bilateral knee pain throughout the course of his appeal. However, there is no evidence that the knee disabilities result in limitation of flexion to 30 degrees or limitation of extension to 15 degrees, sufficient to warrant 20 percent evaluations under Diagnostic Codes 5260 or 5261, respectively. The clinical findings do not suggest that range of motion would change to the degree required for higher ratings after repetitive use, due to pain, with weight bearing, or during flare-ups. The Veteran has been able to take care of his activities of daily living and even with repetitive use there is no significant loss of motion. Given that his complaints do not prevent him from achieving essentially normal range of motion of both knees they do not support a finding of additional functional loss for higher ratings. The Veteran’s complaints have been taken into consideration, but there is no evidence that his knee strain suffer significant or additional functional loss beyond that contemplated by the currently assigned 10 percent evaluations. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 207; see also Mitchell, 25Vet. App. at 32; Correia, 28 Vet. App. at 158; Sharp, 29 Vet. App. at 26. The Board has also considered whether the Veteran would be entitled to higher or separate ratings under any other Diagnostic Code, but other analogous ratings are either not applicable or do not offer higher disability rating based on the symptomatology exhibited. Accordingly, initial schedular ratings of 10 percent are warranted for the Veteran’s left knee disability and right knee disability, and his claims are granted. However, ratings in excess of 10 percent for the Veteran’s left knee disability and right knee disability are not warranted, and his claims are denied. Bilateral Ankle Disabilities The Veteran’s bilateral ankle disabilities are evaluated at a noncompensable rate prior to September 16, 2019, and 10 percent afterwards, under Diagnostic Code 5271 for ankle limitation of motion. The Veteran asserts that he is entitled to higher ratings. Diagnostic Code 5271 evaluates range of motion in the ankle. A 10 percent rating is assigned for moderate limitation of motion and a 20 percent rating, the maximum rating, is assigned for marked limitation of motion. Ankle dorsiflexion is measured from 0 degrees to 20 degrees; plantar flexion is measured from 0 degrees to 45 degrees. 38 C.F.R. § 4.71a, Plate II. The Board observes that the terms “moderate” and “marked” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for an "equitable and just" decision. 38 C.F.R. §§ 4.2, 4.6. Diagnostic Code 5270 evaluates ankylosis of the ankle, Diagnostic Code 5272 evaluates ankylosis of the subastragalar or tarsal joint, Diagnostic Code 5273 evaluates malunion of the os calcis or astragalus, and Diagnostic Code 5274 evaluates astragalectomy, or removal of the talus bone. The medical record does not document any of these conditions. Therefore, these Diagnostic Codes are not applicable and will not be discussed further. Evidence relevant to the severity of the Veteran’s service-connected bilateral ankle strain consists primarily of clinical findings from VA examination in May 2012. He reported intermittent ankle pain with no flare-ups. Range of motion was normal with plantar flexion to 45 degrees and dorsiflexion to 20 degrees for both ankles and no objective evidence of pain. There was no change or additional limitation of motion following repetitive-use testing of either ankle and no functional loss or impairment. There was no pain of palpation or localized tenderness. Muscle strength testing was normal at 5/5 bilaterally and there was no evidence of laxity, joint instability, or ankylosis. The Veteran did not require any assistive devices and his ankle disabilities did not impact his ability to work. Subsequently dated treatment records show continued evaluation of the Veteran’s persistent ankle pain with clinical findings not materially different from those reported on prior VA examination. During outpatient evaluation in 2015 he reported ankle pain and feelings of instability. Examination of the ankles showed no significant swelling or effusion. He had mild pain but no significant laxity and no palpable defect about the lateral ligamentous complex. He had good dorsiflexion and plantar flexion bilaterally. X-rays showed no signs of fracture dislocation and there were no osseous lesions. Joint spaces of the ankles and feet were fairly well preserved. The clinical impression was recurrent right ankle sprain/strain and left ankle tendonitis. The current 10 percent disability ratings are based, in part on findings from a September 2019 VA examination. The Veteran reported pain, stiffness, clicking and that he constantly rolls his ankles but denied flare-ups. He described functional loss/impairment as an inability to run, jog, or walk for prolonged distances. Active range of motion was 0 to 20 degrees of dorsiflexion and 0 to 45 degrees plantar flexion. However, pain, weakness, fatigue, and lack of endurance further limited dorsiflexion to 15 degrees and plantar flexion to 40 degrees. There was no pain with weightbearing or evidence of crepitus. There was also no evidence of pain with passive range of motion testing or when the ankle joint is used in non-weight bearing. There were no additional factors contributing to disability. Muscle strength testing was normal at 5/5 with no evidence of muscle atrophy. There was also no ankylosis, ankle instability, or dislocation and no objective evidence of arthritis. The Veteran reported using braces but his ankle disabilities did not impact his ability to work. Prior to September 16. 2019, based on the preceding evidence, the Veteran is entitled to 10 percent ratings in each of his ankles based on his experiencing bilateral ankle pain throughout the course of his appeal. However, there is no evidence that the ankle disabilities result in marked limitation motion, sufficient to warrant 20 percent evaluations under Diagnostic Code 5271. The Veteran’s bilateral ankle disabilities are largely characterized by subjective pain complaints and essentially normal range of motion even after repetitive testing. There is no objective evidence of instability or reduction in strength. Accordingly, the Board finds that the Veteran's impairment due to bilateral ankle disabilities since September 16, 2019 are most consistent with the assigned 10 percent ratings and that the level of disability contemplated in Diagnostic Code 5271 to support the assignment of a 20 percent or rating or higher is absent. The Veteran has been able to take care of his activities of daily living and even with repetitive use there is no significant loss of motion. Specifically, the clinical findings from the 2012 and 2019 examination reports do not suggest that the Veteran’s full range of motion would change to the degree required for a higher rating after repetitive use, due to pain, or with weight bearing. In addition, the Veteran has consistently denied flare-ups during both VA examinations. Given that his complaints do not prevent him from achieving normal or near normal range of motion of the ankles they do not support a finding of additional functional loss for higher ratings. The Veteran’s complaints have been taken into consideration, but there is no evidence that his ankle disabilities suffer significant or additional functional loss beyond that contemplated by the assigned 10 percent evaluations. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. at 207; see also Mitchell, 25Vet. App. at 32; Correia, 28 Vet. App. at 158; Sharp, 29 Vet. App. at 26. The Board also finds that no other diagnostic code pertaining to the ankle would provide any higher disability evaluation. Accordingly, initial schedular ratings of 10 percent are warranted for the Veteran’s left ankle disability and right ankle disability, and his claims are granted. However, ratings in excess of 10 percent for the Veteran’s left ankle disability and right ankle disability are not warranted, and his claims are denied. REASONS FOR REMAND In light of the grant of service connection for a right shoulder disability, the Board finds this issue cannot be adjudicated until the AOJ effectuates the grant of service connection and assigns the initial evaluation. While on remand, the AOJ should take the opportunity to provide the Veteran with a VA Form 21-8940, the Veterans Application for Increased Compensation Based on Unemployability and VA Form 21-4192, Request for Employment Information in Connection with Claim for Disability Benefits. The AOJ should then pursue any additional development to determine whether or not the Veteran is unable to maintain or secure substantially gainful employment due to his service-connected disabilities. The matters are REMANDED for the following action: 1. Assign an initial rating and effective date for the now service-connected right shoulder disability. (Continued on the next page)   2. Provide the Veteran with both the VA Form 21-8940 (Veterans Application for Increased Compensation Based on Unemployability) and VA Form 21-4192 (Request for Employment Information in Connection with Claim for Disability Benefits) and ask him to complete and return the forms. He should be informed that these or other statements of his education and employment history are essential to his claim, because employment history and education must be considered in his TDIU claim. 3. Then, adjudicate the issue of entitlement to a TDIU. Timothy Berryman Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.R. Bryant The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.