Citation Nr: 21010378 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 16-50 778 DATE: February 24, 2021 ORDER Entitlement to a rating in excess of 10 percent from December 18, 2002 to July 15, 2004 for a service-connected thoracolumbar spine disability is denied. Entitlement to a 40 percent rating, but not more, from July 15, 2004 for a service-connected thoracolumbar spine disability is granted. Entitlement to a rating of 20 percent rating, but not more, from December 18, 2002 to March 25, 2019 for service-connected radiculopathy affecting the sciatic nerve of the left lower extremity is granted. Entitlement to a rating of 20 percent rating, but not more, from December 18, 2002 to March 25, 2019 for service-connected radiculopathy affecting the sciatic nerve of the right lower extremity is granted. Entitlement to a rating of 40 percent, but not more, from March 25, 2019 for service-connected radiculopathy affecting the sciatic nerve of the left lower extremity is granted. Entitlement to a rating of 40 percent, but not more, from March 25, 2019 for service-connected radiculopathy affecting the sciatic nerve of the right lower extremity is granted. Entitlement to a separate rating for neurological abnormalities affecting the bladder is denied. Entitlement to a total disability evaluation due to individual unemployability (TDIU) prior to August 2, 2016 is denied. FINDINGS OF FACT 1. The Veteran’s thoracolumbar spine disability did not manifest as forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 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 manifested as forward flexion of 60 degrees or less from December 18, 2002 to July 15, 2004. 2. The Veteran’s thoracolumbar spine disability manifested as forward flexion limited to 30 degrees from July 15, 2004. 3. The Veteran’s radiculopathy of the left lower extremity manifested as moderate incomplete paralysis of the sciatic nerve from December 18, 2002 to March 25, 2019. 4. The Veteran’s radiculopathy of the right lower extremity manifested as moderate incomplete paralysis of the sciatic nerve from December 18, 2002 to March 25, 2019. 5. The Veteran’s radiculopathy of the left lower extremity manifested as moderately severe incomplete paralysis of the sciatic nerve from March 25, 2019. 6. The Veteran’s radiculopathy of the right lower extremity manifested as moderately severe incomplete paralysis of the sciatic nerve from March 25, 2019. 7. For the period on appeal, the Veteran’s service-connected thoracolumbar spine disability did not manifest as neurological abnormalities affecting the Veteran’s bladder. 8. The Veteran’s service-connected disabilities did not prevent the Veteran from securing and following a substantially gainful occupation prior to August 2, 2016. CONCLUSIONS OF LAW 1. From December 18, 2002 to July 15, 2004, the criteria for a rating in excess of 10 percent for a thoracolumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5242, 5243. 2. From July 15, 2004, the criteria for a 40 percent rating, but not more, for a thoracolumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 3. From December 18, 2002 to March 25, 2019, the criteria for a disability rating of 20 percent, but not more, for incomplete partial paralysis of the sciatic nerve of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 4. From December 18, 2002 to March 25, 2019, the criteria for a disability rating of 20 percent, but not more, for incomplete partial paralysis of the sciatic nerve of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 5. From March 25, 2019, the criteria for a disability rating of 40 percent, but not more, for incomplete partial paralysis of the sciatic nerve of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 6. From March 25, 2019, the criteria for a disability rating of 40 percent, but not more, for incomplete partial paralysis of the sciatic nerve of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 7. For the period on appeal, the criteria for a disability rating for neurological abnormalities affecting the bladder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). 8. The criteria for entitlement to a TDIU are not met prior to August 2, 2016. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.114, 3.155, 3.156, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has a distinguished record of serving the people of the United States and of the State of California. He had active naval service from January 1967 to December 1969 that included service in the Republic of Vietnam. In addition, he also had approximately 35 years of distinguished service with the San Bernardino County Sheriff’s Department from September 1970 until his medical retirement as a Sheriff’s Sergeant in early 2005. In March 2019, the Veteran and his spouse testified before the undersigned Veterans Law Judge in a Travel Board Hearing. A transcript of their helpful and insightful hearing testimony is included in the Veteran’s claims file. This appeal was most recently before the Board of Veterans’ Appeals (the Board) in August 2019. The Board remanded the issues on appeal to afford the Veteran a new Department of Veterans Affairs (VA) examination and to submit additional evidence regarding the severity of his service-connected thoracolumbar spine disability and associated bilateral radiculopathy of both lower extremities. The Veteran received the requested VA examination in December 2019. In a July 2020 rating decision, a VA Regional Office (RO) continued a 40 percent rating for the Veteran’s service-connected thoracolumbar spine disability from December 4, 2019. That rating, however, is based on limitations in his range of motion on forward flexion rather than incapacitating episodes due to his intervertebral disk syndrome (IVDS). The RO also assigned 20 percent evaluations for partial incomplete paralysis affecting the sciatic and femoral nerves bilaterally from December 4, 2019. The RO also issued a July 2020 supplemental statement of the case denying entitlement to ratings higher than those assigned in the July 2020 rating decision. The Veteran’s appeal is once again before the Board. Finally, the Board notes that a July 2020 rating decision assigned 20 percent ratings for radiculopathy of both lower extremities involving the femoral nerve. The Veteran did not initiate an appeal of that decision. For that reason, the propriety of those ratings is not before the Board. Increased Rating 1. Entitlement to an Increased Rating for a Service-Connected Thoracolumbar Spine Disability The Veteran’s thoracolumbar spine disability, diagnosed as degenerative arthritis of the spine and IVDS, is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242 and 5253. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, neither of these diagnostic codes were substantively changed. Indeed, the changes to Diagnostic Code 5243, which pertains to intervertebral disc syndrome, arguably creates a more restrictive application as it now directs to assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root, [Emphasis added] and to otherwise assign diagnostic code 5242 for all other disc diagnoses. However, it is again noted that the General Rating Formula for Diseases and Injuries of the Spine and the Formula for Rating IVDS Based on Incapacitating Episodes did not change. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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 rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 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 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. A veteran’s entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1. Where, as here, a veteran timely appealed the rating initially assigned for the service-connected disability, VA must consider whether a veteran is entitled to “staged” ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s thoracolumbar spine disability is rated as 10 percent disabling from December 18, 2002 to October 12, 2013 and 40 percent disabling from October 12, 2013 to present. The Board concludes that a rating in excess of 10 percent is not warranted from December 18, 2002 to July 15, 2004; however, 40 percent rating based on limited range of motion is warranted from July 15, 2004. Each period is discussed below. A. From December 18, 2002 to July 15, 2004 The preponderance of the evidence shows that the Veteran is not entitled to a rating in excess of 10 percent from December 18, 2002 to July 15, 2004. An August 2004 examination report completed as part of the Veteran’s medical retirement from duties with a county sheriff’s department includes a thorough medical history documenting a range of complaints and treatments. Among them is an August 2002 event in which the Veteran aggravated his back injury, broke his right ankle, and strained his shoulder while serving a search warrant. In November 2002, the Veteran complained of worsening low back pain accompanied by a shock-like sensation that radiated into his left buttocks. He was diagnosed with lumbar disk disease, post lumbar percutaneous diskectomy. (The Board notes that the diskectomy occurred in August 1991.) The Veteran’s back pain persisted, and March 2003 treatment records report the following ranges of motion: 70 degrees on forward flexion; 20 degrees on extension, and 20 degrees bilaterally on lateral flexion. Range of motion measurements for rotation were not included. The objective medical evidence does not show range of motion limited to 60 degrees of forward flexion or less. In addition, his combined range of motion in March 2003, even though it omitted measurements for two ranges of motions, was 130 degrees and exceeded the 120-degree combined range of motion that would warrant a 20 percent rating. The medical evidence of record during the period on appeal described pain and spark-like radiating pain into his lower extremities; however, complaints of muscle spasms are not documented. Thus, a rating in excess of 10 percent is not warranted. The Board notes the Veteran’s September 2010 statement that was accepted as his notice of disagreement regarding the rating assigned to his service-connected thoracolumbar spine disability. That statement expressed his belief that he was entitled to a 20 percent rating for his service-connected thoracolumbar spine. The Board must consider statements from the Veteran, and he is competent to describe his symptoms during the period on appeal; however, the September 2010 statement does not describe the Veteran’s symptoms to indicate that a 20 percent rating is warranted. Consideration has also been given to assigning a rating under the Formula for Rating IVDS Based on Incapacitating Episodes. Based on the evidence of record proximate to the Veteran’s December 2002 claim and prior to July 15, 2004, the Veteran’s service-connected thoracolumbar spine disability did not result in any incapacitating episodes. While the Veteran has a diagnosis of IVDS, he did not experience any incapacitating episodes prior to July 15, 2004. A rating in excess of 10 percent for IVDS is not warranted. B. From July 15, 2004 The Veteran argues in a September 2011 statement that he is entitled to a rating in excess of 10 percent because his service-connected back disability significantly worsened during late summer 2004. The Board concludes that a 40 percent rating is warranted from July 15, 2004. The Veteran’s September 2011 statement and a September 2011 statement from his friend, J.P.N., report a significant flare-up of the Veteran’s back disability during the summer of 2004. Both statements describe severe pain radiating down both legs. The Veteran rated the pain as 10-out-of-10. Both statements note that the Veteran was confined to his bed for a period of approximately two weeks. When the Veteran could walk again, J.P.N. took him to various medical examinations because he was unable to drive himself. While in the car, the Veteran needed to lie down due to pain, and he was taken to an examination room immediately upon arriving at the medical facility so he could lie down to relieve his severe back pain. Private treatment records from August 2004 show decreased range of motion. August 14, 2004 private treatment records document forward flexion to 45 degrees, extension to 15 degrees, lateral flexion to 20 degrees bilaterally, and 0 degrees on rotation. August 14, 2004 private treatment records also describe pain radiating into both buttocks and lower extremities, and tenderness was present with palpation. It was also noted that the Veteran could not stand straight due to severity of his pain. On August 30, 2004, the Veteran received a follow-up. Treatment notes for that examination place the onset of the flare-up as six weeks prior to August 30, 2004, or approximately July 15, 2004. On examination, the Veteran’s forward flexion was to 30 degrees, extension to 15 degrees, left lateral flexion to 15 degrees, and right lateral flexion to 10 degrees. The Veteran’s pain, previously noted as 10 out of 10, ranged from 4-out-of-10 to 6-out-of-10. In light of the foregoing, and after resolving all doubt in his favor, the Board concludes that the Veteran is entitled to a 40 percent rating from July 15, 2004, the date his service-connected thoracolumbar spine disability significantly worsened in severity. See 38 C.F.R. § 3.400(o)(2). The Board notes that the evidence does not show forward flexion limited to 30 degrees until August 30, 2004; however, the evidence of record clearly shows that the Veteran’s symptoms significantly worsened approximately six weeks prior to August 30, 2004. The treatment records for both doctors’ visits in August 2004, the Veteran’s statement, and J.P.N.’s statement all agree that the worsening symptoms onset in prior to August 2004. Thus, it is factually ascertainable that an increase in disability occurred on or about July 15, 2004. See id. A rating in excess of 40 percent, however, is not warranted. The Veteran’s thoracolumbar spine is not shown to be ankylosed. The Veteran’s VA examinations in October 2009, October 2013, May 2016, February 2017, and December 2019 uniformly show that the Veteran’s thoracolumbar spine is not ankylosed. The Veteran’s VA treatment records and private treatment records similarly do not show that the Veteran’s thoracolumbar spine is ankylosed. For instance, private treatment records documenting physical therapy sessions between December 7, 2005 and December 28, 2005 note improving low back pain and improved symptoms. Photographs accompanying those treatment records show the Veteran in a variety of positions and indicate that his spine was not ankylosed. June 2011 VA treatment records document low back pain radiating into the Veteran’s lower extremities. There is no indication that the Veteran’s thoracolumbar spine is ankylosed. A rating in excess of 40 percent based on incapacitating episodes is not warranted either. The evidence does not show that Veteran was incapacitated due to his service-connected thoracolumbar spine disability for six weeks or more during any twelve-month period during the period on appeal. The Board observes that the Veteran was bed-ridden for approximately two weeks in July 2004. That period of times is insufficient to support a 60 percent rating. 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Board highlights that this determination is based on the Veteran’s range of motion and not on his approximately two-week period of incapacitation. Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The record shows incapacitation for two weeks. While this also supports a 40 percent rating, a rating based on range of motion is more favorable to the Veteran because it does not preclude separate ratings for radiculopathy affecting both lower extremities. 2. Entitlement to Increased Ratings for Service-Connected Radiculopathy Affecting the Sciatic Nerves of the Right and Left Lower Extremities The Veteran contends that he is entitled to increased evaluations for his service-connected radiculopathy of the sciatic nerve for both lower extremities. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. The Veteran’s incomplete paralysis of the sciatic nerve affecting both lower extremities is currently evaluated as 10 percent disabling from December 18, 2002 to October 12, 2013 and 20 percent disabling from December 4, 2019. No rating was assigned between the period from October 12, 2013 to December 4, 2019 because the Veteran had been awarded a 40 percent rating under the Formula for Rating IVDS Based on Incapacitating Episodes, which would preclude the assignment of separate compensable ratings for neurological dysfunction (radiculopathy) related to the low back disability. The RO seemingly determined that it was more beneficial to assign the single 40 percent rating for IVDS rather than the three 10 percent ratings that had been in effect. The Board concludes that the evidence of record—and the Board’s assignment of a 40 percent rating from July 15, 2004 due to the Veteran’s impaired range of motion in his thoracolumbar spine—shows that the Veteran’s ratings should be staged as follows: a 20 percent rating from December 4, 2002 to March 25, 2019, and a 40 percent rating from March 25, 2019. A. From December 4, 2002 to March 25, 2019 Resolving reasonable doubt in the Veteran’s favor, the Board concludes that a 20 percent rating for moderate radiculopathy affecting the sciatic nerve in both lower extremities is warranted from December 4, 2002 to March 25, 2019. According to November 2002 treatment records, the Veteran complained of low back pain for two weeks that felt like a shock-like sensation that radiated into his buttocks. In a November 2003 examination, positive straight-leg testing while seated and in supine position was noted. A Fabere maneuver was also positive, indicating pain in the Veteran’s groin and/or buttocks. August 17, 2004 private treatment records document the Veteran’s report that his pain, which was formerly limited to his buttocks, spread to his bilateral lower extremities. The Veteran was unable to perform straight leg testing due to the severity of his low back pain. August 30, 2004 treatment records document the Veteran’s reports of shock-like, shooting pain in his buttocks and both lower extremities. He also reported numbness around his left heel. During the examination, the Veteran could not walk on his toes due to pain onset and weakness in his lower extremities. The Veteran’s deep tendon reflexes in his Achilles was decreased at +1. The Board concludes that the Veteran’s symptoms most closely approximate a 20 percent rating from December 4, 2002. A rating in excess of 20 percent for moderately severe partial paralysis of the sciatic nerve is not warranted, however. An October 2009 VA examination confirmed radiculopathy on EMG; however, the Veteran’s straight leg testing was negative, sensation was intact bilaterally, and strength was 5-out-of-5 bilaterally. An October 2013 VA examination noted moderate intermittent pain in both lower extremities and characterized the Veteran’s radiculopathy as moderate in severity. This is consistent with a 20 percent rating. The examination does not support a rating for moderately severe partial paralysis, as the Veteran did not experience other symptoms, such as numbness or tingling, strength testing was normal bilaterally, sensory examination was normal bilaterally, and the Veteran’s reflexes were 2+. A May 2016 VA examination showed moderate constant pain in the right lower extremity, moderate intermittent pain in the left lower extremity, and moderate numbness in the right lower extremity. Sensory and reflexes were both normal on examination, and straight leg testing was negative. A February 2017 VA examination showed normal sensory examination and mild neurological symptoms. The examiner characterized the Veteran’s neurological symptoms as mild. These examinations are more consistent with a 20 percent evaluation than a 40 percent evaluation. VA treatment records similarly document symptoms supporting a rating of 20 percent rather than a rating in excess thereof. Those records largely document reports of pain radiating from his back into his lower extremities. For instance, January 2011 VA treatment records document reports of chronic low back pain radiating to lower extremities. March 2011 VA treatment records document reports of leg pain, but no other symptoms. May 2011 VA treatment records document anterior thigh pain associated with his low back pain, and February 2016 VA treatment records document diminished reflexes of both lower extremities of 1+. These symptoms are consistent with a 20 percent rating rather than a rating of 40 percent for moderately severe bilateral incomplete paralysis of the sciatic nerve. B. From March 25, 2019 From March 25, 2019, the Veteran’s radiculopathy manifested as moderately severe incomplete paralysis of the sciatic nerve. During the March 25, 2019 hearing, the Veteran’s spouse testified that he dragged both his right and left foot while ascending and descending stairs. The Veteran and his spouse noted that it was not as severe as footdrop and was worse on his right foot than on his left foot. The Veteran also noted increasing pain in his toes, which was worse on the left foot. In light of the Veteran’s hearing testimony describing worsening symptoms involving impaired walking, the Board concludes that the Veteran’s incomplete paralysis the sciatic nerve manifested with symptoms that were not merely sensory in nature. Thus, the Board assigns a 40 percent rating from March 25, 2019. A December 2019 VA examination supports a 40 percent rating. It documents severe intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness in both lower extremities. A 60 percent rating for severe incomplete paralysis of the sciatic nerve is not warranted, however. Such a rating requires marked atrophy, and the evidence of record is silent for atrophy. The December 2019 VA examination specifically notes no atrophy, and his VA treatment records do not document atrophy. C. Weak Bladder The Board notes March 2003 private treatment records in which the Veteran complains of weak bladder. He noted at that time that he did not know if it was due to the neurological complications associated with his service-connected thoracolumbar disorder or not. The ratings criteria note that a separation evaluation for bowel or bladder abnormalities associated with a service-connected back disability may be warranted. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Here, however, the preponderance of the evidence is against such an evaluation. The VA examinations in October 2013, May 2016, February 2017, and December 2019 uniformly note no neurological abnormalities affecting the Veteran’s bladder. These VA examinations are more probative than the March 2003 private treatment records and weigh against a separate rating for neurological abnormalities affecting the Veteran’s bladder. 3. Entitlement to a TDIU Entitlement to a TDIU is part and parcel of any claim for an increased rating. See Harper v. Wilkie, 30 Vet. App. 356 (2018) (holding that once entitlement to a TDIU is put in issue as part of a claim for a higher initial rating/increased rating and the RO grants a TDIU that does not span the entire period on appeal, the issue of entitlement to a TDIU for an earlier period is still on appeal). As indicated above, the period on appeal extends to December 4, 2002, which is the date that the Veteran initiated his claim for compensation. A TDIU may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Here, the Veteran satisfies the schedular criteria for a TDIU for the entire period on appeal. His combined evaluation is 80 percent from December 18, 2002, and the Veteran’s service-connected posttraumatic stress disorder has been evaluated as 50 percent disabling from December 18, 2002. A March 2017 rating decision awarded a TDIU from August 2, 2016. According to evidence of record, this was the day immediately after the cessation of his most recent employment. An April 2016 report of general information notes that the Veteran was self-employed, and the company he owned was dissolved effective February 23, 2016. Prior to dissolving his company, the Veteran took on a project that he was obligated to complete. A statement in support of claim received by VA on August 15, 2016 informed VA that the Veteran had ceased employment as of August 1, 2016. The Veteran’s employment from December 18, 2002 to August 1, 2016 precludes a TDIU prior to August 2, 2016. The Veteran does not contend—and the record does not show—that his employment in the construction industry was sheltered or marginal employment for purposes of TDIU. See Moore v. Derwinski, 1 Vet. App. 356 (1991). The Veteran operated a sole proprietorship until he concluded a project that he took on prior to dissolving his company. In light of the foregoing, entitlement to a TDIU prior to August 2, 2016 is denied. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Douglas M. Humphrey, Associate Counsel 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.