Citation Nr: 1317172 Decision Date: 05/24/13 Archive Date: 05/31/13 DOCKET NO. 04-22 377 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE 1. Entitlement to increased disability rating for right-side radiculopathy, initially rated as 10 percent disabling from September 23, 2002, and rated as 20 percent disabling from July 26, 2004. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Robert V. Chisholm, Esq. ATTORNEY FOR THE BOARD J. H. Nilon, Counsel INTRODUCTION The Veteran served on active duty from May 1981 to June 1990. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2003 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina, that in relevant part denied entitlement to a TDIU. Also on appeal is a December 2004 RO rating decision that granted separate compensable service connection for right-sided radiculopathy as secondary to the service-connected degenerative disc disease of the lumbar spine and assigned an initial 10 percent disability rating effective from September 23, 2002. The Board issued a decision in March 2012 that granted an increased 20 percent rating for right-sided radiculopathy effective from July 26, 2004. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In December 2012 the Court issued an Order that granted a Joint Motion of the Parties to vacate the Board's decision and to return the case to the Board for further consideration. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. From September 23, 2002 to July 26, 2004, the disability picture associated with the Veteran's right-sided radiculopathy most closely approximated mild incomplete paralysis of the sciatic nerve. 2. From July 26, 2004, the disability picture associated with the Veteran's right-sided radiculopathy has most closely approximated moderate incomplete paralysis of the sciatic nerve. 3. The Veteran's service-connected disabilities do not render him unable to obtain and maintain gainful employment consistent with his education, training and work experience. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 10 percent for right-side radiculopathy prior to July 26, 2004 are not met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 8520 (2012). 2. The criteria for an initial rating in excess of 20 percent for right-side radiculopathy from July 26, 2004 are not met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 8520 (2012). 3. The criteria for entitlement to a TDIU are not met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist Before addressing the merits of the Veteran's claim on appeal, the Board is required to ensure that the VA's "duty to notify" and "duty to assist" obligations have been satisfied. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012). The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The United States Court of Appeals for Veterans Claims (Court) has stated that the requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Court has held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) (holding that section 5103(a) notice is no longer required after service-connection is awarded). Thus, VA's duty to notify in regard to the initial rating issue has been satisfied. In any event, the Veteran has not alleged or demonstrated any prejudice with regards to the content or timing of notice regarding either increased disability rating or entitlement to TDIU. See Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice irregularity and clarifying that the burden of showing that an error is harmful or prejudicial normally falls upon the party attacking the agency's determination). See also Mayfield v. Nicholson, 444 F.3d 1328, 1333-34 (Fed. Cir. 2006). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including service treatment records, post-service treatment records, records from the United States Social Security Administration (SSA), VA examination reports, and a VA administrative review of the TDIU claim. The Veteran has been advised of his entitlement to a hearing before the Board but has not requested a hearing. The Board previously determined that additional VA examination was required, and such examination was performed in April 2010; the Board has reviewed the examination report and finds it substantially complies with the requirements articulated in the Board's remand instructions. D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran has not asserted, and the evidence of record does not suggest, that his disability has increased significantly in severity since the last examination. The most recent Joint Motion for Partial Remand, as incorporated by the Court's Order in December 2012, expressed no issues regarding duties to notice and assist. The Board is confident that if any additional VCAA defects existed in its March 2012 decision, such defects would have been brought to the Court's attention in the interest of judicial economy. Based on a review of the claims file, the Board finds that there is no indication in the record that any additional evidence relevant to the issue decided herein is available and not part of the claims file. See Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Therefore, the Board finds the duties to notify and assist have been satisfied and will proceed to the merits of the Veteran's appeal. Evaluation of Right-Sided Radiculopathy Applicable Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified; findings sufficiently characteristic to identify the disease and the disability therefrom are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. The Veteran's disability is rated under the provisions of 38 C.F.R. § 4.124(a) (Diseases of the Peripheral Nerves), Diagnostic Code (DC) 8520 (paralysis of the sciatic nerve). The rating criteria are as follows. A rating of 10 percent is assigned for mild incomplete paralysis. A rating of 20 percent is assigned for moderate incomplete paralysis. A rating of 40 percent is assigned for moderately severe incomplete paralysis. A rating of 60 percent is assigned for severe incomplete paralysis with marked muscular atrophy. A rating of 80 percent is assigned for complete paralysis: the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). In any increased rating claim, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Factual Background Service connection has been effective for right sided radiculopathy since September 2002. In September 2001 the Veteran underwent surgery by VA to remove a mass in the right leg. Follow-up surgery clinic notes dated in October 2001 show postoperative complaints of numbness and weakness in the right leg and ankle related to surgery. During clinical examination at the VA neurology clinic in June 2002 the Veteran had 4/5 strength in the bilateral lower extremities. Deep tendon reflexes (DTRs) were absent in the lower extremities. The Veteran had minimal gait ataxia, and sensory examination showed decreased sensation to cold, touch and vibration below the knees. The neurological diagnoses were: diabetes mellitus with neuropathy; DJD of the cervical spine; DJD of the lumbosacral spine; carpal tunnel syndrome; ulnar neuropathy; chronic pain syndrome; polysubstance abuse; and, erectile dysfunction. In VA primary care in July 2002 the Veteran reported right leg weakness. The Veteran was examined by Dr. Tankersley in July 2002 in conjunction with his claim for SSA disability benefits. The Veteran reported that his low back pain radiated into the backs of both legs; he denied associated weakness or numbness of either lower extremity. Neurological examination showed decreased sensation of temperature and touch in both feet in a "stocking" pattern but was otherwise normal. Strength was normal in the left lower extremity and had some limitations in the right lower extremity. Patellar DTRs were 2+ bilaterally; Achilles reflex was 1+ on the left and absent on the right. The relevant impression was DJD and DDD of the lumbar spine with possible radicular component and history of diabetes mellitus with onset of peripheral neuropathy in both feet. VA MRI of the lumbar spine in August 2002 showed an impression of degenerative spinal stenosis at the L3-4 and L4-5 levels. In a November 2002 VA neurology visit the Veteran complained of right-sided neurological symptoms in the face, right upper extremity and right lower extremity. Lower limb strength was 4/5 bilaterally; the Veteran had Romberg sway and mild tandem gait ataxia. Sensory examination showed decreased perception of cold, touch, and vibration below the knees (thus, bilaterally). Current diagnoses were diabetes mellitus with neuropathy, DJD of the cervical spine, DJD of the lumbar spine, carpal tunnel syndrome, ulnar neuropathy, chronic pain syndrome, history of polysubstance abuse and history of erectile dysfunction. The Veteran had a VA examination in November 2002 in which he reported a history of diabetes with associated neuropathies of the bilateral upper and lower extremities, right worse than left to the degree that the Veteran was concerned about possibly having had a stroke. Regarding the RLE, he reported globally decreased sensation circumferentially beginning at the hip and progressing all the way to the foot. He also described weakness in the entire RLE. On examination the SLR test was negative bilaterally. Sensation in the RLE was globally decreased in all distributions in a nonfocal pattern. There was decreased motor function in the right leg, 4/5 compared to 5/5 in the left leg. Deep patellar and Achilles tendon reflexes were 2+ and symmetric. The examiner opined that the global nature of the Veteran's numbness was likely secondary to diabetic neuropathy and not secondary to a spine problem. In VA treatment in December 2002, the clinician observed that the Veteran's movement and gait were normal. In May 2003, the Veteran reported right-sided radiculopathy. In July 2003 he reported pain in his right arm, the right side of his trunk, and his right leg; a clinician found that cranial nerves were grossly intact and that DTRs were symmetrical and intact. A January 2003 VA physical medicine and rehabilitative services (PM&RS) physician consult shows DTRs were currently +1 and symmetrical bilaterally. SLR and Faber tests were negative, and sensory was normal. X-ray of the lumbar spine showed mild narrowing of the intervertebral disc spaces with slightly more marked narrowing at L4-5; the impression from X-ray was degenerative spinal stenosis at the L3-4 and L4-5 levels. In VA treatment in February 2004, deep tendon reflexes were absent in the RLE and 2+ in the LLE. During VA primary care clinic (PCC) treatment in March 2004 the Veteran was noted on diabetic foot inspection to have reduced sensation in both feet. In a VA endocrine treatment visit in May 2004, the Veteran reported having numbness and tingling in his right arm and right leg. Examination confirmed decreased sensation in the right hand and right leg. The examiner was unable to get ankle jerks bilaterally. On VA examination of the spine in July 2004 the Veteran complained of low back pain radiating down the right leg and causing a resulting impairment of gait; he stated that he used a cane to prevent planting his right foot with full force. Neurological examination noted no motor findings. In the right leg there was diffuse sensitivity to pain and touch over the L4 to S1 dermatomes. The Achilles reflex was absent bilaterally. The examiner noted a gait that favored the right leg, and use of a cane for that purpose. The examiner diagnosed bilateral L5-S1 radiculopathy due to canal and foraminal stenosis in the spine. A September 2004 treatment note by the VA neurology clinic shows normal muscle tone. Strength was 4/5 in the bilateral lower extremities. SLR was negative in both lower extremities, but there was Romberg sway and wide-based antalgic gait with unsteady turns. Sensory examination showed decreased perception to cold below the knees. Provisional diagnosis was DJD of the lumbosacral spine with low back pain and diabetes mellitus with neuropathy. In VA treatment in October 2004, the Veteran reported right-sided low back pain with radicular symptoms into the right lower extremity. He was able to walk independently using a standard cane. The Veteran had a VA examination of the peripheral nerves in November 2004. The examiner reviewed the Veteran's claims file and noted his medical and psychiatric history. The Veteran complained of pain and discomfort in the RUE and RLE that was not confined to either a peripheral nerve or nerve root distribution but rather was all-encompassing of the leg or arm. The examiner noted previous diagnosis of bilateral L5 radiculopathy and diabetic-related peripheral neuropathy; apparently those diagnoses were based on absent ankle jerk reflexes and sensory loss in "stocking" pattern in the bilateral lower extremities. The Veteran's current complaint of right-side symptoms was related only to pain; he did not describe numbness, tingling, burning, dysesthesia, hyperpathia or allodynia. Physical examination of the RLE showed normal muscle mass and tone. Strength testing showed give-way weakness but appeared to be strong enough, in that the give-way weakness was predominantly volitional. There was a decrease in all sensations in a stocking pattern. The right knee jerk reflex was present but the ankle jerk reflex was absent. The examiner found that the Veteran most likely had right leg sciatica as well as peripheral neuropathy consistent with his diabetes. The examiner expressed the opinion that the right lower extremity functional incapacity was 50 percent related to diabetes and 50 percent related to radiculopathy. In his Notice of Disagreement (NOD), received in January 2005, the Veteran asserted he had constant numbness in the right leg that interfered with walking. He endorsed constant shooting pains from the back down the right leg, and stated that his right leg dragged because of weakness. A VA PCC note dated in February 2006 shows diabetic foot examination revealing normal sensory function of the feet. The Veteran received VA inpatient psychiatric treatment in May 2006 due to threatened suicidal ideation. A nursing admit note at the time of admission shows steady gait, no muscle or strength deficits and normal range of motion. An attending psychiatrist noted that issues of primary and secondary gain appeared to have predominated and influenced the Veteran's admission, particularly since the Veteran was essentially homeless, was vague as to specific symptoms and showed no harmful intention toward himself or others. In August 2009 the Veteran presented to the VA PCC complaining that his right leg became numb and gave out on him and he fell, landing on his buttocks. Later that month he presented to the VA cardiovascular risk reduction clinic (CRRC), where he was noted to be walking with a cane and complaining of being in a lot of pain after his recent fall. The Veteran reported to the VA CRRC in September 2009 that he was currently walking 30 minutes per day. A VA PCC note in December 2009 shows diabetic foot examination noting intact sensation bilaterally. The Veteran was treated at the VA emergency department in March 2010 for dizziness and pre-syncope. In conjunction with emergency treatment he was given a thorough clinical examination; neurological observations were that the Veteran had normal strength and normal gait. He was provisionally diagnosed with benign positional vertigo. The Veteran had a VA examination of the spine April 2010 during which he complained of low back pain and pain radiating into the right leg and foot, including the plantar surface of the foot. He indicated that he used a cane. He stated that his right leg was weak and that he was unable to walk more than fifteen feet or stand for more than a few minutes. He reported that he had last worked in 2007, as an environmental services supervisor, and that he had stopped working when his back pain got worse. The examiner observed that the Veteran wore a back brace, walked with a limp, and used a cane. SLR test was positive on the right. The lower extremities had 5/5 motor strength, although the right had somewhat less strength than the left. DTRs were 2+, equal, and symmetrical. There was decreased sensation in the right leg circumferentially. The lower extremities had no atrophy and had normal tone. The examiner characterized the low back disability as DDD with RLE radiculopathy. The examiner opined that the Veteran's lumbar DDD with RLE radiculopathy would make it difficult for him to do any type of manual labor, and that if he was able to find a job that allowed him to sit and stand as needed he would probably not be able to accept such a position due to his medication regimen. In an addendum, the VA examiner highlighted that the Veteran's lumbosacral spine examination showed normal sensory and motor examination of the extremities to include strength, sensation, tone and absence of atrophy unless otherwise noted. A VA PCC note in August 2010 states an impression of peripheral neuropathies of the right leg, ambulating with a cane. The Veteran received VA inpatient treatment in September 2010 following an episode of vertigo and syncope that resulted in a fall and a resultant head trauma. Neurological examination showed strength as intact and 5/5 in both lower extremities. Vibration sensation was decreased in the right lower extremity compared with the left lower extremity. DTRs were 1+ throughout. In August 2010 the AOJ referred the case to the Director of Compensation and Pension Services for extraschedular consideration under the provisions of 38 C.F.R. § 4.16(b). In response, the Director of Compensation and Pension Services issued a decision in October 2010 finding that review of the file from 2004 to 2010 showed few complaints of back discomfort; the majority of treatment notes were for psychiatric and substance abuse problems, and diabetes. The Director stated that lower extremity sensory deficits were shown to be mild and did not warrant an evaluation in excess of 10 percent. In a March 2011 VA neurological consultation the Veteran reported that his back pain and right leg paresthesias had worsened in recent months. He related a couple of episodes of numbness of the entire right leg that lasted a few days. The clinician noted that the Veteran walked with an antalgic gait. There was full strength in both lower extremities, but evidence of pain in the right hip flexors. There was decreased sensation to light touch, vibration, and temperature in the right leg in the L4-L5 distribution. The clinician stated that it was likely that the Veteran's back pain and leg paresthesias were from chronic L4-L5 radiculopathy. Analysis The Board's decision continued the rating of 10 percent prior to July 26, 2004, and granted an increased rating of 20 percent from that date. For the reasons cited below, the Board affirms and continues those ratings. As an initial matter, the Board notes that VA must consider all favorable lay evidence of record. 38 USCA § 5107(b); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996). Accordingly, in addition to the medical evidence of record the Board has considered the Veteran's lay evidence as comprised by his correspondence to the Board and his statements to various medical examiners and providers in which he essentially asserted having experienced significant weakness in the RLE to include foot drag. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, once evidence is determined to be competent, the Board must determine whether such evidence is also credible. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (distinguishing between competency ("a legal concept determining whether testimony may be heard and considered") and credibility ("a factual determination going to the probative value of the evidence to be made after the evidence has been admitted"). In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza, 7 Vet. App. 498. The Board may weigh the absence of contemporaneous medical evidence against the lay evidence in determining credibility, but the Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board may not ignore a veteran's testimony simply because he or she is an interested party and stands to gain monetary benefits; personal interest may, however, affect the credibility of the evidence. Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). The Board finds the Veteran is not credible in relating the severity of his symptoms. In that regard, a VA psychologist in September 2001 observed a mild degree of symptom magnification, which he described as meaning that the Veteran was able to do more at times than he himself stated or perceived. During VA mental health treatment in November 2002 the Veteran reported spontaneous recall of events in Viet Nam, although review of his service personnel file shows he did not serve during the Viet Nam era. In May 2006 a VA psychiatrist noted issues of primary and secondary gain in conjunction with the Veteran's request for inpatient treatment. The Board accordingly finds the Veteran to be an unreliable historian in regard to symptoms that are not shown during clinical examination. September 23, 2002 to July 26, 2004 The Board's decision in March 2012 observed that prior to July 2004 clinicians had found varying degrees of decreased sensation and reflexes in the Veteran's RLE but did not observe significant effects on the Veteran's weightbearing and activities and therefore denied a rating in excess of 10 percent prior to July 2004. In vacating the Board's decision, the Joint Motion observed that prior to July 2004 the Veteran had demonstrated gait ataxia, absent DTRs, weakness, decreased motor function and slightly decreased strength and stated the Board failed to adequately discuss why these symptoms, which are more than "wholly sensory," do not show entitlement to a rating higher than 10 percent prior to July 2004. Following the Court's Order, the Veteran's representative submitted a letter in March 2013 arguing that the Veteran had used a cane prior to July 2004, so if use of a cane was the Board's criterion for grant of higher rating then such criterion was in fact met prior to that date. The representative also argued that the rating criteria of DC 8520 are "somewhat illusive" because the ratings for 10 percent ("mild" incomplete paralysis"), 20 percent ("moderate" incomplete paralysis) and 40 percent ("moderately severe" incomplete paralysis) do not include any qualifiers; it is not until the 60 percent rating ("severe" incomplete paralysis) that the rating schedule provides a qualifier (i.e., "marked muscular atrophy"). The Veteran's representative asserted that the Veteran's symptoms "minimally include weakness, absent deep tendon reflexes, decreased motor function, decreased strength and ataxic gait ... these symptoms do not even include the constant, severe pain the Veteran experiences on a daily basis, which in and of itself can be completely debilitating." The Board acknowledges that the terms "mild," "moderate" and "moderately severe" are not defined in the rating schedule. Therefore, rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Addressing first the comments made in the Joint Motion, as incorporated by the Court's Order and the statement of the Veteran's representative, the Veteran is shown to have had "minimal ataxia" in June 2002 and "mild ataxia" in November 2002. "Ataxia" is defined as an inability to coordinate muscle activity during voluntary movement, most often due to disorders of the cerebellum or the posterior columns of the spinal cord, and may involve the limbs, head or trunk. See STEDMAN'S MEDICAL DICTIONARY, 27th edition (2000), pg. 161. While "ataxia" is not specifically cited after November 2002, the clinical records continue to show impaired gait (e.g., VA neurology clinic note dated in March 2011 noting "antalgic gait"). The VA examiner in July 2004 specifically noted that the Veteran favored his right leg. However, as the ataxia is characterized as "mild" or "minimal" the Board does not find that it shows a disability picture more closely approximating "moderate" incomplete paralysis. Moreover, while the Veteran requested a cane in July 2001 for his back and was provided one, during the August 2001 VA examination, he noted he used the cane for stability. At that time motor strength was normal bilaterally. Thus, the use of a cane prior to July 2004 is not dispositive of the level of impairment of the right lower extremity radiculopathy, and does not establish that the Veteran's incomplete paralysis was of moderate degree. Regarding "absent DTRs" as cited in the Joint Motion and by the Veteran's representative, the evidence prior to July 2004 is inconsistent. DTRs were absent bilaterally in June 2002 and Achilles reflexes were absent in the RLE in June 2002. However, DTRs were 2+ and symmetrical in November 2002, intact and symmetrical in December 2002, 1+ and symmetrical in January 2003 and symmetrical and intact in May 2003. DTRs were absent in the RLE in February 2004 and ankle jerks were absent bilaterally in May 2004 and July 2004. (After July 2004 the presence or absence of DTRs continued to be inconsistent, with DTRs being 2+ and symmetrical in April 2010). Given that the "absence of DTRs" specifically in the RLE has been clinically inconsistent over time, the Board does not find that such symptom contributes to a disability picture that more closely approximates a moderate incomplete paralysis. The Veteran's representative pointed to weakness/deceased motor function in the RLE, but again the evidence is inconsistent. Strength was 4/5 bilaterally in June 2002. There was "some limitation" of strength in the RLE in July 2002 but strength was 4/5 bilaterally in November 2002. On another occasion in November 2002 strength in the RLE was 4/5 versus strength in the LLE of 5/5. Thus, actual limitation of strength and motor function in the RLE as compared to the LLE appears to have been at most a decrease from 5/5 to 4/5, which more closely approximates a finding of mild incomplete paralysis. The Veteran's representative points to the Veteran's RLE pain. The rating schedule for the Veteran's underlying lumbosacral spine disability specifically contemplates pain, even whether or not it radiates; see General Rating Formula for Diseases and Injuries of the Spine, 38 C.F.R. § 4.71a. Therefore, additional compensation for pain radiating into the RLE would pay the Veteran twice under different diagnostic codes for the same symptom, which could constitute "pyramiding" and is prohibited. 38 C.F.R. § 4.14; see also Brady v. Brown, 4 Vet. App. 203 (1993). The Board is precluded from differentiating between the symptomology attributable to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so. See Mittleider v. West, 11 Vet. App.181, 182 (1998) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). The medical opinion in that regard is conflicting. The VA examiner in November 2002 stated that the Veteran's numbness was consistent with diabetic neuropathy, given the global pattern, but the VA clinician in March 2011 stated the Veteran's leg pain and paresthesias are due to chronic L4-L5 radiculopathy. The VA examiner in November 2004 stated the Veteran's neurological incapacity was 50 percent due to diabetes and 50 percent due to radiculopathy; thus, the opinion addresses not just sensory but overall neurological impairment. The findings of a physician are medical conclusions that the Board cannot ignore or disregard. Willis v. Derwinski, 1 Vet. App. 66 (1991). Thus, to the extent the constellation of the Veteran's neurological symptoms (sensory and motor impairment and antalgic gait) are argued to approximate a moderate incomplete paralysis, only 50 percent of such impairment is due to the service-connected disability. Thus, the service-connected radiculopathy more closely approximates a mild incomplete paralysis. Finally, the Veteran's representative asserts the Board should grant a 20 percent rating for the entire appeal period because the rating criteria allow either a 10 percent or 20 percent rating for numbness alone; the representative characterizes the rating schedule as "regulatory nonsense" that allows two completely opposite disability pictures to warrant the same disability rating. However, the rating criteria provide various evaluations and it is the degree of functional impairment caused by the symptomatology that dictates whether such falls within the mild or moderate level, not the mere characterization of the symptom as sensory or nonsensory. The provision of two different levels of compensation based on sensory complaints such as numbness is consistent with VA's requirement under 38 C.F.R. § 4.21 to coordinate the rating with impairment of function in all cases. While the rating schedule permits a 20 percent rating based on sensory impairment alone, the Veteran's impairment in this case does not rise to that level. From July 26, 2004 The Board's decision in March 2012 stated that from the VA examination in July 2004 forward, most of the medical records note some gait impairment related to the Veteran's RLE disorder and reflect that the Veteran used a cane when walking, thus showing neurological impairment that is between mild and moderate. The Board accordingly assigned a 20 percent rating under DC 8520. The Board found that muscle strength in the right leg and foot was largely retained, so the neurological impairment did not rise to the level of moderately severe or worse such as would warrant a rating higher than 20 percent. Medical evidence since July 2004 does not show decrease in strength/motor function in the RLE. The Veteran had 4/5 bilaterally in September 2004, 5/5 bilaterally in April 2010 (although the right had "somewhat less" strength than the left), 5/5 bilaterally in September 2010 and full strength bilaterally in March 2011. Thus, there is no loss of strength in the RLE to warrant a finding of moderately severe incomplete paralysis. Regarding ataxia, the Veteran continued to show a limp after July 2004. However, given that the VA ER in March 2010 noted the Veteran to have a normal gait, the limp cannot have been so severe as to show a moderately severe incomplete paralysis. Regarding DTRs, right ankle jerk was absent in November 2004 but DTRs were symmetrical in April 2010 and September 2010. Thus, "absence of DTRs" is inconsistent and does not show a disability picture more closely approximating moderately severe incomplete paralysis. The Veteran's representative requests the Board articulate what symptoms the Veteran would need to demonstrate before a rating higher than 20 percent is assigned. However, the rating criteria have been enumerated above. While the rating criteria identifies objective criteria for complete paralysis, and marked muscular atrophy for severe incomplete paralysis, specific symptoms are not listed for the lesser incomplete paralysis. However, incomplete paralysis is defined as indicating a degree of lost or impaired function substantially less than what is required for complete paralysis. It is the duty of the Board to apply the rating criteria, not to define such. Indeed, it appears the representative is arguing that because sensory impairment is rated at 10 and 20 percent, then any nonsensory neurological impairment therefore warrants a higher rating. However, it is the overall impairment caused by the radiculopathy that is considered, regardless of whether symptoms include both sensory and nonsensory neurological impairment. The rating schedule does not distinguish that only sensory complaints can be considered in assigning the 10 and 20 percent ratings under DC 8520 and thereby actual neurological impairment requires a higher rating be assigned. Instead, the note preceding 38 C.F.R. § 4.124a provides a maximum rating for wholly sensory manifestations of incomplete paralysis of a peripheral nerve. It does not require that a disability be rated as more than moderate in degree simply because the symptoms of that disability are not wholly sensory in nature. For the reasons set forth above, upon consideration of the evidence, the Board finds the Veteran's overall disability picture of the RLE from July 2004 simply does not approximate a functional impairment consistent with moderately severe incomplete paralysis. Other Considerations The Board has considered whether referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology, and provide higher ratings for disability levels more severe than those shown by the evidence. Thus, his disability picture is contemplated by the Rating Schedule, and ratings under that schedule are therefore adequate. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. In sum, based on the evidence and analysis above, the Board has found that the Veteran's disability picture prior to July 2004 did not approximate moderate incomplete paralysis of the sciatic nerve, and that after that date the disability picture did not approximate moderately severe incomplete paralysis of the sciatic nerve. Accordingly, the criteria for rating higher than 10 percent prior to July 2004 and rating higher than 20 percent from that date are not met and the claim must be denied. As the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. Entitlement to TDIU Applicable Legal Criteria It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate, "when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation." 38 C.F.R. §§ 3.340(a)(1), 4.15. A TDIU may be assigned, if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). For the purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper or lower or one or both lower extremities, including the bilateral factor if applicable; (2) disabilities resulting from a common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or, (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). Because it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the schedular standards set forth in 38 C.F.R. § 4.16(a) above. See 38 C.F.R. § 4.16(b). Marginal employment will not be considered incompatible with a determination of unemployability, if the restriction as to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17. For a veteran to prevail on a total rating claim, the record must reflect some factor that takes the claimant's case outside the norm. The sole fact that a veteran is unemployed or has difficulty finding employment is not enough, since a high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment; the question is whether the claimant is capable of performing the physical and mental acts required for employment, not whether the claimant can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Factual Background The Veteran is service-connected for the following disabilities: DDD of the lumbar spine, rated as 40 percent disabling; right-sided radiculopathy, rated as 20 percent disabling; superficial scars, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; and, hearing loss in the left ear, rated as noncompensable. His combined evaluation is 60 percent. The Board recognizes that the DDD of the lumbar spine (40 percent) and right-sided radiculopathy (20 percent) are of a common etiology and thus represent a single disability for the purpose of evaluating schedular entitlement to TDIU. However, under the Combined Rating Table (38 C.F.R. § 4.25), a 40 percent rating and a 20 percent rating have a combined evaluation of 50 percent. Thus, the Veteran does not meet the schedular threshold for TDIU under 38 C.F.R. § 4.16(a). Because the Veteran does not meet the schedular threshold for TDIU under 38 C.F.R. § 4.16(a), the Board will consider whether referral for extraschedular consideration under 38 C.F.R. § 4.16(b) is warranted. The Veteran's instant claim for TDIU was received by the RO in September 2002. A December 2000 VA PCC note reflects that the Veteran informed the clinician that he was unable to work due to persistent nausea and vomiting; he also stated he was unable to work due to vision problems that hindered him from looking at a computer screen. The Veteran received VA inpatient mental health treatment in May-June and June -July 2001 due to suicidal ideation. The Veteran reported his last gainful employment had been two years previously as a computer software salesman, but he had not been productive recently due to diabetes, back pain, inability to eat and frequent vomiting (due to erosive esophagitis). He reported having had 16 years of formal education, with a 4-year degree in banking and finance and most of the credits needed for a Bachelor of Arts (BA) degree in business management. He stated he was feeling hopeless because he feared being unemployable due to his medical problems. The Veteran stated his present physical impairment rendered him unable to return to his previous employment as computer software salesperson, and he stated he was interested in VA vocational assistance. The discharge diagnosis was major depression, polysubstance abuse (cocaine and cannabis) and mixed personality. An order was placed for vocational rehabilitation consultation. During VA examination in August 2001 the Veteran reported he was currently not working. He previously worked in computer sales, but was terminated in May 2001 because he was unable to sit all day at a keyboard. He reported he was currently in vocational rehabilitation. A treatment note by the VA occupational therapy clinic in September 2001 for functional capacity examination (FCE) preliminary to undertaking VA vocational training. The Veteran self-reported that his level of activity was negligible due to need for daily naps. The Veteran reported having not worked since July 2001; he stated he was terminated for "abandonment of job" due to his many medical appointments. The Veteran underwent a battery of tests. By the Oswestry Low Back Disability Questionnaire, the Veteran scored 66 percent for low back pain, indicating he perceived himself as "crippled" (defined as back pain impinging on all aspects of the patient's life both at home and at work, with positive intervention required). However, the examiner stated the Veteran's overall test findings, in conjunction with clinical observations, suggested a mild degree of symptom magnification. This was not meant to imply intent, but simply that the patient could do more at times than he currently stated or perceived. While subjective reports should not be disregarded, they should be considered within the context of the symptom magnification findings. A May 2002 occupational therapy consult at the VA PM&RS clinic shows the Veteran reported being currently employed. His complaint was intermittent numbness in the hands due to carpal tunnel syndrome and ulnar neuropathy. The consult is silent in regard to occupational therapy for any service-connected disability. In May 2002 the Veteran reported the following work history to SSA: active service from 1980 to 1990; customer service representative for a credit card company from 1990 to 1991; general manager and bartender in a restaurant from 1991 to 1994; dispatcher for a housing maintenance agency from 1994 to 1996; customer service clerk for a temporary employment agency from 1997 to 1998; van driver from 1998 to 1999; and, software sales from February 1999 to April 2001. The Veteran was examined by psychiatrist Dr. Harley in May 2002 in conjunction with his claim for SSA disability benefits. The Veteran was asked to identify what specifically prevented his gainful employment; the Veteran responded that he was unemployable to due physical pain, particularly back pain and pain in the lower extremities. Dr. Harley diagnosed major depression (Axis I) and identified significant concurrent medical problems of diabetes mellitus, degenerative disc disease and carpal tunnel syndrome (Axis III). Dr. Harley stated the Veteran was a very capable man who had been reduced to seeing himself as ineffective due to his physical problems. During clinical examination at the VA neurology clinic in June 2002 the Veteran stated he had moved back to South Carolina after losing his regular job as an airport shuttle driver in Florida; he was able thereafter to get temporary employment at a local computer firm. The Veteran endorsed having had a blackout in March 2001 due to high blood sugar; he was placed on insulin in July 2001. A June 2002 letter by the South Carolina Vocational Rehabilitation (SCVR) Department states the Veteran had been attending vocational training since that April but was being discharged due to pain issues. A corresponding SCVR worksheet records that the Veteran was able to get along with supervisors and co-workers but was unable to keep up with the pace of the program due to his multiple medical problems. The Veteran had left training at mid-day due to pain and to diabetes-related problems and had called in sick on several occasions. The Veteran's neurologist stated the training program was aggravating the Veteran's medical problems (specifically, acute neuropathy of the neck, carpal tunnel, elbow problems and diabetes). A subsequent letter from VA Vocational Rehabilitation in July 2002 states it was not reasonable to expect the Veteran to train for or obtain suitable employment. The letter noted the Veteran had attended SCVR from April-June 2002 but was unable to complete the work evaluation process due to pain and inability to meet the demands of the workshop. The Veteran had also reported an intention to apply for a TDIU based on the SCVR evaluation and recent neurological examination. The Veteran was examined by physician Dr. Tankersley in July 2002 in conjunction with his claim for SSA disability benefits. The Veteran's chief complaints were lumbar spine disorder with chronic back pain, history of diabetes mellitus and history of right carpal tunnel syndrome. Based on examination, Dr. Tankersley had the following impression: history of DJD and DDD of the lumbar spine with possible radicular component; probable DJD and DDD of the cervical spine with chronic mechanical neck pain and possible radicular involvement; entrapment neuropathy of the RUE rule out rotator cuff involvement and probable right carpal tunnel syndrome and ulnar neuropathy; right-sided facial swelling of uncertain etiology; history of diabetes mellitus and onset of diabetic neuropathy in both feet; long history of psychiatric dysfunction; history of gastroesophageal reflux disease (GERD) with H-pylori; history of colonic polyps status post removal; and, history per patient of left ear hearing loss. Dr. Tankersley stated she did not know what to make of the Veteran's multiple findings, and she felt there were non-organic issues clouding his clinical picture. During VA mental health treatment in November 2002 the Veteran reported having been unemployed for the past two and one-half years. He complained of spontaneous recall of events in Viet Nam, although review of his service personnel file shows he did not actually serve in Viet Nam. A disability determination by SSA in December 2002 denied the Veteran's claim for disability benefits. The Veteran had asserted unemployability due to diabetes, insomnia, a gastrointestinal disorder, erosive esophagitis, degenerative disc disease, carpal tunnel syndrome, hernia, dual personality trait and depression. The SSA adjudicator found the Veteran's various disorders prevented him from returning to any of his previous jobs, but found that based on his age, education, and past work experience he should be able to do other jobs requiring less physical exertion and simpler skills. In March 2003 the Veteran filed a VA Form 21-4192 (Request for Employment Information in Connection with a Claim for Disability Benefits) stating he had last worked in April 2001; his occupational position at the time was in telephone sales. The reason for termination of employment simply states, "terminated employment." He stated that during the last 12 months of employment he lost 65 working days due to disability. The file contains a VA PM&RS vocational rehabilitation initial evaluation in February 2004, apparently on referral from the VA mental health clinic. The Veteran explained he had been previously denied VA vocational rehabilitation and admitted having been rejected for disability benefits by SSA based on a determination that he was able to work. The Veteran reported educational background of two years of junior college plus completion of a four-year certificate in banking. He reported work history of eight years experience working in a bank as an account executive; his last full-time employment was in January 2000-May 2001 as a computer software sales representative. The Veteran reported he had recently been working part-time in a furniture store but he quit that job during the previous month after having an argument with the owner. The Veteran stated that in addition to conducting a search for employment he would concurrently be pursuing SSA benefits, nonservice-connected pension benefits and other benefits. In his Notice of Disagreement (NOD), received in March 2004, the Veteran asserted had to leave his last job due to his back disability. The Veteran submitted a Statement in Support of Claim in April 2007 reporting his claim for SSA disability had been denied five times. The Veteran submitted a formal claim for TDIU dated in October 2007 in which he stated he had left a temporary job as semi-skilled carpenter's assistant because he was unable to climb stairs, lift doors, stoop or stand for long periods; he also had episodes of blackouts related to diabetes. The Veteran submitted an additional formal claim for TDIU dated in April 2008 in which he asserted he was unable to continue to work due to chronic pain syndrome, diabetes, posttraumatic stress disorder (PTSD) and DJD of the cervical and lumbosacral spine. Of these occupational impairments, only the last-cited (DJD of the lumbosacral spine) is a service-connected disability. A decision by SSA in January 2009 granted disability benefits effective from March 2008, based on a determination that DDD and diabetes had more than minimally impacted the Veteran's ability to perform work-related activities. The decision found that comorbid polysubstance abuse, depressive disorder and PTSD did not more than minimally impact occupational ability. Prior to March 2008, the Veteran did not credibly have functional inability to perform at least light work. From March 2008 the Veteran had the residual functional ability to perform unskilled sedentary work but the demands of his past relevant work exceeded the Veteran's residual functional capacity. In an April 2009 VA mental health treatment note the Veteran reported he was currently enrolled in a local technical college seeking an Associate Degree in hospitality and tourism management. The Veteran reported he was a full-time student and that he had been the Dean's List during the previous semester. The Veteran was interviewed by a VA psychologist in January 2010. The Veteran stated he had resigned his previous job due to a medical condition. He stated his current vocational goal was to seek SSA benefits and increase VA disability benefits. The Veteran stated he expected to receive a degree in hospitality and tourism management later that year. The Veteran had a VA examination of the spine in April 2010 in which the examiner expressed an opinion that the service-connected lumbar DDD with RLE radiculopathy would make it difficult for him to do any type of manual labor, and that if he was able to find a job that allowed him to sit and stand as needed he would probably not be able to accept such a position due to his medication regimen. In August 2010 the AOJ referred the case to the Director of Compensation and Pension Service for extraschedular consideration under the provisions of 38 C.F.R. § 4.16(b). In response, the Director issued a decision in October 2010 finding that review of the file from 2004 to 2010 showed few complaints of back discomfort; the majority of treatment notes were for psychiatric and substance abuse problems, and diabetes. The Veteran was taking multiple prescription medications daily to treat both service-connected and nonservice-connected disabilities. The Director noted that the VA examiner in April 2010 had not stated the Veteran was unable to work in any kind of position due solely to his service-connected disabilities. The Director stated that the medication regimen that the Veteran was using to treat nonservice-connected conditions likely interfered with his daily functioning but could not be considered for VA purposes when determining the effect of the service-connected disabilities on functional ability. Although the Veteran has asserted inability to work since 2007, the objective findings of the VA examinations in 2009 and 2010, in addition to other treatment notes, do not demonstrate that the Veteran's service-connected conditions, alone, prevent him from engaging in all types of work-related activities. The Veteran stated during VA mental health treatment in February 2011 that he was seeking work through the SSA back-to-work program and via vocational rehabilitation. He stated he had recently been offered work but did not have the necessary transportation. A VA PCC note dated in June 2011 shows the Veteran was currently working part-time as a driver for the local school district. Analysis Review of the file shows the Veteran is capable by education (16+ years of education) and training (previous work in banking/finance and in computer software sales) to perform gainful sedentary employment. The question is whether his service-connected disabilities, alone, prevent him from such employment. The Veteran essentially asserts he cannot work due to service-connected back pain and associated radiculopathy into the lower extremities. The VA examiner in April 2010 provided a medical opinion that the service-connected lumbar DDD with RLE radiculopathy would make it difficult the Veteran to do any type of manual labor, and that he would probably be unable to accept a sedentary position because of his medication regimen. As noted by the Director of Compensation and Pension, the Veteran's medication regimen includes propoxyphene for pain and flexeril for muscle spasms, but the evidence of record does not show that these medications cause side-effects that would impair gainful employment. Further, in addition to the service-connected low back pain and lower extremity radiculopathy, the Veteran has nonservice-connected joint and muscle disorders involving the cervical spine, upper extremities (cervical radiculopathy and carpal tunnel syndrome) and hips; thus, the propoxyphene and flexeril cannot be presumed to be solely prescribed to treat the service-connected disabilities. The Director of Compensation and Pension Service also noted the Veteran's medication regimen is significant for insulin to control diabetes, lisoprinel to control hypertension, trazodone for sleep disorder/depression, and other medications for erectile dysfunction, GERD and multiple other conditions, and stated an opinion that the medication for nonservice-connected conditions was the likely cause of interference with daily function. In that regard, the Veteran's VA medication list in July 2011 included the following: insulin, lisoprinel and trazodone, as cited above; acetaminophen (general pain relief); aspirin (heart protection); bisacodyl (digestion); cyclobenzaprine (muscle relaxant); lorazepam (nerves); meclizine (dizziness); naproxen (arthritis); and, simvastatin (cholesterol). This quantity of medications to treat nonservice-connected disorders supports the Director's finding that the Veteran's medications for his service-connected disabilities, alone, do not render him unable to pursue gainful employment. The Board acknowledges that the Veteran was been found by the SSA in January 2009 to have been unemployable from March 2008. However, the findings of the Social Security Administration are not controlling in the adjudication of VA benefits; see Murincsac v. Derwinski, 2 Vet. App. 363, 370 (1992). The fact that the Veteran was physically able to function as a fulltime student in 2010, and to perform at least part-time employment as a driver in 2011, demonstrates that his service-connected disabilities, alone, do not render him unemployable. In sum, the Board has found the Veteran is not shown to be unable to obtain or maintain gainful employment due to his service-connected disabilities. Accordingly, the criteria for entitlement to TDIU are not met and the claim is denied. Because the preponderance of the evidence is against the claim the benefit-of-the-doubt rule does not apply. Gilbert, 1 Vet. App. 49, 54. ORDER An initial rating in excess of 10 percent for right-side radiculopathy prior to July 26, 2004, and a rating in excess of 20 percent from that date, is denied. Entitlement to a TDIU is denied. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs