Citation Nr: 1007945 Decision Date: 03/03/10 Archive Date: 03/11/10 DOCKET NO. 08-28 602 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Paul, Minnesota THE ISSUES 1. Entitlement to a disability rating in excess of 10 percent for tinnitus. 2. Entitlement to a disability rating in excess of 30 percent prior to July 8, 2009, and in excess of 60 percent thereafter, for bilateral hearing loss. 3. Entitlement to a disability rating in excess of 10 percent for bilateral pes planus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Stephanie L. Caucutt, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1944 to July 1946. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 and June 2008 rating determinations of a Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Paul, Minnesota. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2009). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT 1. The Veteran's service-connected tinnitus is assigned a 10 percent rating, the maximum rating authorized under Diagnostic Code 6260. 2. Prior to July 8, 2009, the Veteran's bilateral hearing loss is productive of no more than Level VI hearing acuity in the right ear and Level VII in the left ear. 3. As of July 8, 2009, the Veteran's bilateral hearing loss is productive of no more than Level IX hearing acuity in the right and left ears. 4. The Veteran's bilateral pes planus has been productive of no more than moderate impairment throughout this appeal as evidenced by subjective complaints of pain and weakness and objective evidence of a slightly antalgic gait, some abnormal weightbearing; there is no clinical evidence of pain on manipulation, abnormal range of motion of the toes, abnormal alignment of the Achilles tendon, midfoot, and forefoot, use of orthopedic shoes or appliances, or any additional functional limitation as a result of pain, fatigue, weakness or incoordination with repetition. CONCLUSIONS OF LAW 1. There is no legal basis for the assignment of a schedular evaluation in excess of 10 percent for bilateral tinnitus. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.87, Diagnostic Code 6260 (2009); Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). 2. The criteria for a disability rating in excess of 30 percent prior to July 8, 2009, or in excess of 60 percent thereafter, for bilateral hearing loss have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.85, Diagnostic Code 6100 (2009). 3. The criteria for a disability rating in excess of 10 percent for bilateral pes planus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.40, 4.45, 4.71a, Diagnostic Code 5276 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must (1) notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, (2) which information and evidence VA will obtain, (3) and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159 (2009). As an initial matter, the Board notes that in Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004), the United States Court of Appeals for Veterans Claims (Court) held that VA must request that the claimant provide any evidence in his possession that pertains to the claim based upon 38 C.F.R. § 3.159(b). The requirement of requesting that the claimant provide any evidence in his possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23,353 (final rule revising 38 C.F.R. § 3.159(b) to rescind fourth element notice as required under Pelegrini, effective May 30, 2008). Thus, any error related to this element is harmless. However, although this notice is no longer required, the Board observes that the Veteran was aware that it was ultimately his responsibility to give VA any evidence pertaining to the claim decided herein. Letters sent to the Veteran in January 2008 and April 2008 expressly told him to provide any relevant evidence in his possession. See Pelegrini, 18 Vet. App. at 120. After careful review of the claims folder, the Board finds that the aforementioned January 2008 and April 2008 letters satisfied the duty to notify provisions. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Such letters advised the Veteran what information and evidence was needed to substantiate the increased rating claims decided herein. They also requested that he provide enough information for the RO to request records from any sources of information and evidence identified by the Veteran, as well as what information and evidence would be obtained by VA, namely, records like medical records, employment records, and records from other Federal agencies. The January 2008 and April 2008 letters were sent to the Veteran prior to the March 2008 and June 2008 RO rating decisions, respectively. Thus, the VCAA notice was timely. See Pelegrini, 18 Vet. App. at 120. Turning to VA's duty to assist, the Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claims and providing a VA examination when necessary. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159(c) (2009). In this regard, the Veteran's service treatment records are associated with the claims folder, as well as all VA and non-VA treatment records relevant to the current appeal period. The Veteran has not identified any additional relevant, outstanding records that need to be obtained before deciding his claim. The Veteran was afforded VA audiological examinations in March 2008 and July 2009 for the specific purpose of evaluating the severity of his current hearing loss disability. In evaluating the adequacy of these examinations, the Board notes that the Court of Appeals for Veterans Claims (hereinafter "the Court"), in Martinak v. Nicholson, 21 Vet. App. 447, 455 (2007), noted that VA had revised its hearing examination worksheets to include the effect of the Veteran's hearing loss disability on occupational functioning and daily activities. See Revised Disability Examination Worksheets, Fast Letter 07-10 (Dep't of Veterans Affairs Veterans Apr. 24, 2007); see also 38 C.F.R. § 4.10 (2009). The Court also noted, however, that even if an audiologist's description of the functional effects of the Veteran's hearing loss disability was somehow defective, the Veteran bears the burden of demonstrating any prejudice caused by a deficiency in the examination. In this case, both VA examinations of record merely note that the Veteran complains of persistent hearing loss. To the extent that neither examination report includes a discussion of the effects of the Veteran's hearing loss disability on occupational functioning and daily life, the Board finds no prejudice to the Veteran as a result of this omission because he (1) alleged no such prejudice and (2) stated on more than one occasion during the pendency of the claim the effects of his bilateral hearing loss disability on occupational functioning and daily life. See, e.g., VA Audiology Notes dated in June 2007 and August 2007. Moreover, as discussed in greater detail below, the evidence does not show that the Veteran's hearing loss disability has resulted in marked interference with employment or activities of daily life. Thus, any error on the part of the March 2008 and July 2009 VA examiners in failing to address the effects of the Veteran's hearing loss disability on occupational functioning and daily life in the examination report is harmless. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Veteran was also afforded VA foot examinations in March 2008 and July 2009 for the specific purpose of evaluating the severity of his bilateral pes planus. The examination report reflects that a complete history was obtained from the Veteran and that all relevant and pertinent findings were reported, including any functional impact on the Veteran's daily life and employment. Both the March 2008 and July 2009 VA examiners obtained x-rays in conjunction with the Veteran's examination and both examiners also considered any additional functional impacts due to pain, repetitive use, flare-ups, weakness, incoordination, etc. As such, the Board finds these examinations adequate for rating purposes. See 38 C.F.R. § 4.2 (2009). As a final note, the Board observes that the Veteran's claims file was not reviewed as part of any of the VA foot or audiological examinations completed during this appeal. VA's duty to assist includes conducting a thorough and contemporaneous examination of the Veteran that takes into account the records of prior examinations and treatment as well as to provide a medical examination. Green v. Derwinski, 1 Vet. App. 121, 124 (1991). However, in the present case, the Board observes that only evidence pertinent to his claim for an increased rating was his December 2007 claim for increase, which merely stated that he wanted to apply for an increased rating, and VA treatment records, which were reviewed by the VA examiners. The remaining evidence consisted of service treatment records and records pertaining to the Veteran's earlier claim for benefits, which would not be relevant to the current claim for increase. The Board therefore finds no prejudice in the unavailability of his claims file during his these examinations. Under the circumstances of this case, "the record has been fully developed," and "it is difficult to discern what additional guidance VA could have provided to the veteran regarding what further evidence he should submit to substantiate his claim." Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Therefore, the Board is satisfied that VA has complied with the duty to assist requirements of the VCAA and the implementing regulations and the record is ready for appellate review. Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2 (2009) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed the service treatment records and all other evidence of record pertaining to the history of the Veteran's service- connected disabilities. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Board is of the opinion that this case presents no evidentiary considerations, except as noted below, that would warrant an exposition of the remote clinical history and findings pertaining to the disabilities at issue. Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.10 (2009). Regulations require that where there is a question as to which of two evaluations is to 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 (2009). I. Tinnitus The Veteran was previously awarded service connection for tinnitus and assigned a maximum schedular 10 percent rating, effective April 17, 2003. In December 2007, the RO received a claim for increased compensation for his service-connected disabilities, including tinnitus. Tinnitus is evaluated under Diagnostic Code 6260, which was revised effective June 23, 2003, to clarify existing VA practice that only a single 10 percent evaluation is assigned for tinnitus, whether the sound is perceived as being in one ear, both ears, or in the head. 38 C.F.R. § 4.87, Diagnostic Code 6260, Note (2) (2009). As noted above, the Veteran's increased rating claim was received in December 2007; thus, the most recent version applies. Regardless, the Board observes that the United States Court of Appeals for the Federal Circuit has upheld VA's long-standing interpretation of Diagnostic Code 6260 as authorizing only a single 10- percent rating for tinnitus, whether perceived as unilateral or bilateral. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). In view of the foregoing, the Veteran's claim for a higher disability rating for tinnitus, to include the issue of separate 10 percent ratings for each ear, must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). II. Hearing Loss Under the applicable criteria, ratings for hearing loss are determined in accordance with the findings obtained during audiometric evaluations. See 38 C.F.R. § 4.85, Diagnostic Code 6100 (2009). Ratings for hearing impairment range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests, together with the average hearing threshold level as measured by pure tone audiometric tests in the frequencies 1,000, 2,000, 3,000 and 4,000 cycles per second. To evaluate the degree of disability from hearing impairment, the Rating Schedule establishes eleven auditory acuity levels designed from Level I for essentially normal acuity through Level XI for profound deafness. See id. Hearing tests are conducted without hearing aids, and the results of the above-described tests are charted on Table VI and Table VII. See id. Historically, the Veteran was previously granted service connection for bilateral hearing loss by RO rating decision dated in March 2004 and assigned an initial disability rating of 20 percent, effective April 17, 2003. In December 2007, the RO received a claim for increased evaluation for bilateral hearing loss. The Veteran was evaluated in March 2008 and his disability rating was increased from 20 percent to 30 percent, effective December 31, 2007, by RO rating decision dated in March 2008. The Veteran appealed this partial grant of benefits and following another VA audiological examination in July 2009 the disability rating assigned to bilateral hearing loss was increased from 30 percent to 60 percent, effective July 8, 2009. The Veteran continues to disagree with these assigned ratings. The results of the March 2008 VA audiological examination demonstrate pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 55 65 80 105 76 LEFT 55 60 75 95 71 Speech audiometry at this VA audiological examination revealed speech recognition ability of 76 percent in the right ear and 64 percent in the left ear. Entering the above average pure tone thresholds and speech recognition abilities into Table VI reveals numeric designations of hearing impairment of V for the right ear and VII for the left ear. See 38 C.F.R. § 4.85. However, the Board observes that the results of the above audiological examination reflects bilateral hearing loss which meets the criteria of "exceptional hearing patterns" under 38 C.F.R. § 4.86(a). As such, Table VIa is for application, and a numeric designation of VI may also be assigned for each ear. Entering the highest possible category designations for each ear into Table VII (VI and VII) results in a 30 percent rating under Diagnostic Code 6100. The remaining record dated prior to July 8, 2009, contains VA audiology notes which reflect the Veteran's complaints of hearing loss, tinnitus, ear pain, and difficulty hearing in background noise. However, there are no additional audiometric findings. As such, the Board must base its decision for the first stage of the appeal on the results of the above audiogram, which clearly show entitlement to no more than an initial rating of 30 percent for the period of the appeal prior to July 8, 2009. The Veteran was reevaluated by a VA audiologist on July 8, 2009. The results of this VA audiological examination demonstrate pure tone thresholds, in decibels, as follows: HERTZ 1000 2000 3000 4000 AVERAGE RIGHT 50 70 90 105 79 LEFT 55 60 75 105 74 Speech audiometry at this VA audiological examination revealed speech recognition ability of 48 percent in the right ear and 42 percent in the left ear. Entering the above average pure tone thresholds and speech recognition abilities into Table VI reveals numeric designations of hearing impairment of IX for the right and left ears. See 38 C.F.R. § 4.85. The criteria for "exceptional hearing patterns" was considered; however, higher numeric designations are not warranted for either ear based on the above results. See 38 C.F.R. §§ 4.85, 4.86(a). Entering the highest possible category designations for each ear into Table VII (IX and IX) results in a 60 percent rating under Diagnostic Code 6100. The Board has reviewed the remaining evidence of record. However, there are no additional audiometric findings available with which to evaluate the Veteran's bilateral hearing loss disability. Thus, the competent evidence fails to show that the Veteran's bilateral hearing loss meets the criteria for a rating in excess of 30 percent for the period of the appeal from December 31, 2007, to July 8, 2009, and a rating in excess of 60 percent for the period of the appeal from July 8, 2009, through the present. Furthermore, the stages assigned by the RO appear to be appropriate given the evidence of record, and a need for additional staged ratings is not shown by the evidence. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119, 126 (1999). The above determination is based upon application of the pertinent provisions of VA's Rating Schedule. The purpose of the Rating Schedule is to compensate a veteran for the average impairment in earning capacity resulting from his service-connected disability. 38 C.F.R. § 4.1 (2009). Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illness proportionate to the severity of the disability. Id. However, in some cases a disability may present exceptional or unusual circumstances with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b) (2009). In these cases, a referral for consideration of an extra-schedular rating is warranted. Id. In Thun v. Peake, 22 Vet. App. 111, 115 (2008), the Court held that the determination of whether a veteran is entitled to an extra-schedular rating under 38 C.F.R. § 3.321(b) is a three-step inquiry, beginning with a threshold finding that the evidence before VA "presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate." In other words, the Board must compare the level of severity and symptomatology of the Veteran's disability with the established criteria found in the rating schedule for that disability; if the criteria reasonably describe the Veteran's disability level and symptomatology, then his disability picture is contemplated by the rating schedule. Id. If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extra-schedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. Thun, 22 Vet. App. at 116; 38 C.F.R. § 3.321(b)(1). The Veteran has contended during this appeal that he has difficulty hearing when there is a lot of background noise; he also experiences problems when the speaker is in another room. VA Audiology Notes dated in June 2007 and August 2007. Finally, there is evidence that the Veteran uses an amplifier to aid him while speaking on the telephone. VA Ear, Nose, and Throat Consult dated in March 2005. With regards to any occupational effects, the Veteran retired from farming due to age in 1995; thus, no effects have been identified. The rating criteria for a hearing loss disability, as described above, focus on hearing sensitivity and speech discrimination abilities. Thus, it appears that the majority of his symptomatology is adequately contemplated by the Rating Schedule. The Board acknowledges that the occasional ear pain experienced by the Veteran is not contemplated by the Rating Schedule. However, even with consideration of such symptomatology, the Board is of the opinion that the Veteran's disability does not reflect such an unusual disability picture as to render the Rating Schedule inadequate. In this regard, the Veteran has not demonstrated how occasional ear pain impacts his social and/or occupational functioning. Additionally, he has not shown any 'other related factors' present, such as "marked" interference with employment or frequent hospitalization. In sum, the staged ratings presently assigned to the Veteran's hearing loss disability reasonably describes his disability level and impairment in earning capacity. Therefore, no extra-schedular referral is required. Thun v. Peake, 22 Vet. App. 111 (2008); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995); 38 C.F.R. § 3.321(b)(1). In reaching these conclusions, the benefit of the doubt doctrine has been applied where appropriate. See 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). III. Pes Planus The Veteran is currently in receipt of a 10 percent disability rating for bilateral pes planus pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5276 (2009). He asserts that he is entitled to a higher rating on the basis of near- constant foot pain which is aggravated by walking and prolonged standing. Diagnostic Code 5276 provides ratings for acquired flatfoot. 38 C.F.R. § 4.71a, Diagnostic Code 5276. Mild flatfoot with symptoms relieved by built-up shoe or arch support is rated as noncompensably (0 percent) disabling. Moderate flatfoot with weight-bearing line over or medial to the great toe, inward bowing of the tendo achillis, pain on manipulation and use of the feet, bilateral or unilateral, is rated 10 percent disabling. Severe flatfoot, with objective evidence of marked deformity (pronation, abduction, etc.), pain on manipulation and use accentuated, indication of swelling on use, characteristic callosities, is rated 30 percent disabling for bilateral disability. Pronounced flatfoot, with marked pronation, extreme tenderness of plantar surfaces of the feet, marked inward displacement, and severe spasm of the tendo achillis on manipulation, that is not improved by orthopedic shoes or appliances, is rated 50 percent disabling for bilateral disability. Id. The Veteran's contemporaneous treatment records are relatively silent for clinical findings pertinent to the above rating criteria. There is some mention of his complaints of pain and weakness in his legs and feet; however, there is no specific evaluation of his complaints by podiatry or any other clinic. The remaining record consists of VA examination reports dated in March 2008 and July 2009 and the Veteran's lay statements, as discussed above. Both examination reports reflect that the Veteran subjectively complains of pain throughout his feet and lower legs, as well as occasional numbness. These symptoms are worsened with prolonged standing or walking. Despite the Veteran's complaints of pain sometimes as severe as 10 out of 10, objective examination throughout this appeal failed to reveal clinical findings suggestive of more than a moderate disability picture. In this regard, both the March 2008 and July 2009 VA examination reports demonstrate that the Veteran walks with no more than a "slight" antalgic gait; there is no clinical evidence of edema, instability, or weakness. Range of motion in the Veteran's toes was found to be "normal" and examination was negative for evidence of calluses, pain on manipulation, and abnormal angulation, Achilles alignment, midfoot alignment, or forefoot alignment. The Veteran's feet had a minimal arch on non-weightbearing which was all but nonexistent with weightbearing. There was objective evidence of increased wear over the lateral aspect of the heels on his shoes, suggestive of pronation; however, neither examiner noted this to be evidence of a "marked" deformity. Additional clinical findings such as hallux valgus, hallux rigidus, acquired pes cavus, muscle atrophy, or malunion of the tarsal bones were not evident at either examination. Finally, the March 2008 and July 2009 VA examiners indicated that there were no additional functional limitations than those expressly noted when considering flare-ups, repetitive use, painful motion, weakness, excessive fatigability, or lack or endurance or incoordination. It was also noted that the Veteran did not use any orthopedic shoes or appliances; he indicated at the July 2009 VA examination that he only used a cane when ambulating on his farm. The diagnoses provided in these examination reports were 'bilateral pes planus, mild with foot and lower leg pain,' and 'pes planus...with foot pain,' respectively. In considering the evidence of record under the laws and regulations as set forth above, the Board is of the opinion that the Veteran does not meet the criteria for the next highest rating, namely, 30 percent. In this regard, none of the criteria listed in the Rating Schedule are present, as discussed above, and neither examiner, nor any treating physician, has characterized the Veteran's disability as anything more than mild. The Board acknowledges that it has considered the Veteran's competent lay statements regarding the severity of his bilateral foot pain as well as its effects on his daily life. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (2006) (Board must address veteran's lay assertions); see also Layno v. Brown, 6 Vet. App. 465, 469 (1994) (the veteran as a lay person is competent to report information of which he has personal knowledge, i.e., information that he can gather through his senses). However, in assessing the severity of the Veteran's disability, the Board finds the objective clinical evidence of record to be more probative, and such evidence fails to demonstrate anything more than moderate symptomatology. See Hayes v. Brown, 5 Vet. App. 60, 69 (1993), citing Wood v. Derwinski, 1 Vet. App. 190, 192-93 (1992) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence). Moreover, as discussed above, the March 2008 and July 2009 VA examiners reported no additional functional limitation in either foot due to pain, fatigue, weakness or incoordination with repetition. As such, 38 C.F.R. §§ 4.40 and 4.45 do not provide a basis for a higher rating. See also DeLuca v. Brown, 8 Vet. App. 202, 204-06 (1995). Consideration has been given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991) in rating the Veteran's pes planus. However, the Board finds no basis upon which to assign a higher disability rating for the Veteran's service-connected disability, as a review of the record, to include the medical evidence, fails to reveal any additional functional impairment associated with such disability to warrant consideration of alternate rating codes. The Board acknowledges that radiographic evidence at the July 2009 VA examination demonstrated mild hammertoe deformities of the right foot and mild osteoarthritis of the right great toe metatarsophalangeal joint. However, as evident by the clinical diagnosis provided ("pes planus right foot associated with pain"), such abnormalities have not been found to be associated with pes planus. Similarly, VA treatment records dated in September 2005 and March 2007 reflect that the Veteran has bilateral peripheral neuropathy of the lower extremities as well as general deconditioning of his lower extremities. Again, no competent evidence of record indicates that either of these disabilities is related to his service-connected pes planus. Finally, the Board has considered whether the record raises the matter of an extra-schedular rating under 38 C.F.R. § 3.321(b)(1) (2009). In exceptional cases where schedular evaluations are found to be inadequate, consideration of an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities may be made. The governing norm in an exceptional case is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. Id.; see also Thun v. Peake, 22 Vet. App. 111, 115 (2008). Pertinent to the Board's determination, the criteria in the Rating Schedule pertaining to the Veteran's pes planus focus on gait movement with consideration of functional loss due to pain, swelling, abnormalities of the foot, including spasm of the Achilles tendon, and use of orthopedic shoes and appliances. Thus, the Board is satisfied that the Rating Schedule adequately addresses the functional impairment caused by pain associated with the Veteran's pes planus as well as any loss in earning capacity due to such symptomatology. Cf. Smallwood v. Brown, 10 Vet. App. 93, 97- 8 (1997) (the Board was required to consider whether referral for an extra-schedular rating was warranted where a medical examiner stated that a foul-smelling odor related to the veteran's osteomyelitis precluded employment in a confined space with other workers). Referral for extra-schedular consideration is therefore not warranted. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. In sum, the Board finds that the competent medical and lay evidence of record supports the Veteran's current 10 percent rating for no more than moderate bilateral pes planus throughout this appeal. See Fenderson v. West, 12 Vet. App. 119 (1999) (the Board must consider staged ratings). Seeing as a preponderance of the evidence is against the assignment of a higher rating, this appeal must be denied. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (CONTINUED ON NEXT PAGE) ORDER Entitlement to a disability rating in excess of 10 percent for tinnitus is denied. Entitlement to a disability rating in excess of 30 percent for bilateral hearing loss prior to July 8, 2009, and in excess of 60 percent thereafter, is denied. Entitlement to a disability rating in excess of 10 percent for bilateral pes planus is denied. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs