Citation Nr: 1333156 Decision Date: 10/23/13 Archive Date: 10/24/13 DOCKET NO. 09-10 619 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for a condition manifested as memory loss, to include consideration of an undiagnosed illness. 2. Entitlement to service connection for a condition manifested as eye pain, to include consideration of an undiagnosed illness. 3. Entitlement to an initial compensable evaluation for a headache disorder, prior to October 14, 2011. 4. Entitlement to an evaluation in excess of 30 percent for a headache disorder, since October 14, 2011. 5. Entitlement to an initial evaluation in excess of 10 percent for gastroesophageal reflux disease (GERD). 6. Entitlement to a compensable evaluation for left ear hearing loss. REPRESENTATION Appellant represented by: North Carolina Division of Veterans Affairs ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran had active military service with the United States Army from February 1990 to June 1994, and from March 2004 to March 2006. He was a member of the Army Reserves. During his active duty periods, the Veteran served in the Southwest Asia Theater of Operations (SWATO). These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2007 and March 2009 rating decisions by the Winston-Salem, North Carolina, Regional Office (RO) of the United States Department of Veterans Affairs (VA). The February 2007 decision denied service connection for memory loss and eye disabilities, as well as a compensable evaluation for service-connected left ear hearing loss. In March 2009, service connection for GERD, rated 10 percent disabling, and headaches, rated 0 percent disabling, was granted. In an April 2013 decision, the RO granted entitlement to an increased, 30 percent evaluation for headaches, effective from October 14, 2011. The Veteran has not indicated that this award satisfied his appeal, and the maximum benefit possible was not granted. The appeal with regard to both stages of evaluation therefore continues. AB v. Brown, 6 Vet. App. 35 (1993). A claim for increased evaluation includes a claim for a finding of total disability based on individual unemployability (TDIU) where there are allegations of worsening disability and related unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). As the Veteran has continued to work throughout the appellate period, no TDIU claim is inferred. In various correspondence, to include an August 2011 statement, the Veteran appears to raise a claim for a gastrointestinal condition other than GERD. This claim has not yet been adjudicated by the agency of original jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. The issue of service connection for a disability manifested as eye pain is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. Subjective complaints of memory loss are associated with the diagnosed condition of service-connected posttraumatic stress disorder (PTSD). 2. Prior to October 14, 2011, a headache disorder was manifested by multiple nonprostrating headaches per week, which minimally interfered with daily activity. 3. Since October 14, 2011, a headache disorder is manifested by prostrating attacks of short duration once a month or more, which have not resulted in severe economic inadaptability. 4. GERD has been manifested by persistently recurrent dysphagia, pyrosis, and regurgitation, without substernal or arm or shoulder pain, and which have not resulted in more than mild impairment of health, throughout the appellate period. 5. The Veteran is not diagnosed with, or service-connected for, right ear hearing loss. 6. Left ear hearing loss is manifested by no worse than Level I hearing impairment. CONCLUSIONS OF LAW 1. The criteria for service connection of a condition manifested as memory loss, to include consideration of an undiagnosed illness, are not met. 38 U.S.C.A. §§ 1110, 1131, 1117, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.317, 4.14 (2013). 2. The criteria for an increased initial 10 percent evaluation, but no higher, for a headache disorder, prior to October 14, 2011, are met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2013). 3. The criteria for an evaluation in excess of 30 percent for a headache disorder, since October 14, 2011, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8100 (2013). 4. The criteria for an initial evaluation in excess of 10 percent for GERD are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.112, 4.114, Diagnostic Code 7346 (2013). 5. The criteria for a compensable evaluation for left ear hearing loss are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). With regard to GERD and a headache disorder, these appeals arise from the Veteran's disagreement with the initial evaluations following the grants of service connection. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required with respect to those claims. With regard to the remaining issues on appeal decided here, VA has met all statutory and regulatory notice and duty to assist provisions. Letters dated in April 2006, July 2006, and September 2010 satisfied the duty to notify provisions. These letters also notified the Veteran of regulations pertinent to the establishment of an effective date and of the disability rating. Finally, the Veteran was informed of the need to show the impact of disabilities on daily life and occupational functioning in a July 2008 letter. The claims were subsequently readjudicated, most recently in two separate April 2013 supplemental statements of the case. Regarding the duty to assist, the Veteran's service treatment records and VA medical treatment records have been obtained. He did not identify any private treatment records pertinent to the appeal; records discussed in relation to the eye in the Remand section below are limited to that issue. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. The Veteran has not indicated, and the record does not contain evidence, that he is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2). Repeated VA examinations have been afforded the Veteran. Doctors have made all required clinical findings to permit application of appropriate Schedular criteria, and have offered required medical opinions, with supporting rationale. The Veteran has not argued, and the record does not reflect, that the examinations are inadequate for rating purposes. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examinations of record are adequate for adjudication of the claims. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Service Connection Service connection will be granted if it is shown that the Veteran suffers from a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in the line of duty, during active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Disorders diagnosed after discharge will still be service-connected if all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d); see also Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994). In order to establish service connection on a direct basis, the record must contain: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Service connection may be established for a chronic disability resulting from an undiagnosed illness that became manifest either during active service in the SWATO during the Persian Gulf War or to a degree of 10 percent or more not later than December 31, 2016. 38 U.S.C.A. § 1117; 38 C.F.R. § 3.317(a)(1)(i); Extension of Statutory Period for Compensation for Certain Disabilities Due to Undiagnosed Illnesses and Medically Unexplained Chronic Multi-Symptom Illnesses, 76 Fed. Reg. 81,834 (Dep't of Vet. Aff. Dec. 29, 2011). Service connection may also be established for a Persian Gulf Veteran who exhibits objective indications of "qualifying chronic disability," a chronic disability resulting from an undiagnosed illness, a medically unexplained chronic multisymptom illness (such as chronic fatigue syndrome, fibromyalgia, and irritable bowel syndrome) that is defined by a cluster of signs or symptoms, or any diagnosed illness that the Secretary determines warrants a presumption of service-connection. 38 U.S.C.A. § 1117. An "undiagnosed illness" is one that by history, physical examination, and laboratory tests cannot be attributed to any known clinical diagnosis. 38 C.F.R. § 3.317(a)(1)(ii). A "qualifying chronic disability" is defined, in part, as an undiagnosed illness. 38 C.F.R. §§ 3.317(a)(2)(i)(A). Signs or symptoms involving the neurological or neuropsychological systems may be a manifestation of an undiagnosed illness or a chronic multisymptom illness. 38 C.F.R. § 3.317(b)(6-7) Even after the consideration afforded above, however, compensation will not be paid if: (1) there is affirmative evidence that an undiagnosed illness either was not incurred during active service, or (2) there is affirmative evidence that an undiagnosed illness was caused by a supervening condition or event, or (3) there is affirmative evidence that the illness is the result of the Veteran's own willful misconduct or the abuse of alcohol or drugs. 38 C.F.R. § 3.317(c). The veteran, having served in the Southwest Asia Theater of operations during the Persian Gulf War, is entitled to this presumption. Personnel records establish his SWATO service. The Veteran contends that he has experienced substantial memory loss since his second period of active duty service. Service treatment records in fact reflect that at a January 2005 retention examination, the Veteran complained of "constant short term memory loss." The examiner stated that memory was normal on testing, and his complaints were probably not significant in light of the multitasking accomplished by the Veteran daily. In a January 2006 post-deployment questionnaire, the Veteran indicated that he had memory problems during his deployment, but did not have them currently. Following service, the Veteran reported that the memory problems he experienced during mobilization had continued after service. In July 2006, he stated he had difficulty recalling his birthday, what day of the week it was, or what had just been said to him. At a February 2009 VA psychiatric examination, the examiner found that testing showed normal remote, recent, and immediate memory. The Veteran reported, however, that unless he kept repeating information, he would lose it from short term memory. Remote memory was "fair." The Veteran related his memory symptoms to "neuropsychological" problems in August 2011, based on conversations with his primary VA care provider. Such discussions are not reflected in VA treatment records, which do not include memory loss as an active diagnosis or problem. At a March 2011 VA psychiatric examination, the Veteran stated that he had memory problems "for years" and could not track conversation topics. He could "forget things from years, days, even minutes" prior that were being talked about. At a March 2012 VA mental disorders examination, the examiner was asked to specifically consider whether the reported memory loss was related to the service-connected PTSD. However, the examiner stated that he could not render the requested opinion, including the presence of memory loss or relation to a psychiatric condition, without resort to mere speculation because of invalid responses by the Veteran to various testing tools, including the SIMS, WMT, and MMPI-2 tests. The examiner also noted that the Veteran's alcohol dependency, manifested by heavy daily drinking, further complicated the disability picture. Alcohol use could have a direct impact on memory. He opined that the Veteran was clearly and unmistakably magnifying symptoms to make himself appear more disturbed than he actually was. This did not mean that symptoms were not present, only that their actual severity could not be determined. One test, the WNT, tested cognitive functioning and was designed to be simple for use with severely damaged individuals, as in traumatic brain injury cases. The Veteran's poor responses indicated that it was improbable that he had a "true memory impairment." The stated significance level (p) of .001 in fact indicates a near certainty (99.0% likely) that there was no real impairment. The pattern of his responses, doing better on difficult components as compared to simple ones, "underscored the improbability of a true memory deficit pattern being present on objective testing." The examiner stressed that some impairment might be present, but that its true extent could not be established. In any event, the examiner included memory deficit as a sign or symptom of the service-connected mental disorder. A second March 2012 VA examination to assess the possibility of a TBI was performed. That examiner reported that the Veteran stated he had memory problems since his first period of active duty, and denied the onset or aggravation of memory problems following exposure to numerous explosions from 2004 to 2006. The Board notes that the Veteran is competent to report memory problems, as he can experience and observe recall problems through his five senses, regardless of specialized training or knowledge. Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). He is not, however, competent to diagnose any underlying condition, or to attribute memory problems to a specific condition or disorder, as those determinations reflect a degree of complexity beyond the average layperson. The evidence of record establishes the presence of some degree of memory loss since the Veteran's 2004-2006 service; he first reported symptoms on active duty, and has continued to do so over the years since. The degree of impairment has varied markedly, as testing by VA examiners shows. Further, the Board notes that on recent examinations, from 2011 and 2012, the Veteran began alleging memory loss since 1990. Given the volume of reports from the Veteran and the documentary evidence of memory loss beginning during the second service period, this recent allegation is found to be not credible. The Board notes as well that on numerous claims for benefits filed and examinations performed prior to 2005, there are no reports of memory loss, and the Veteran in fact affirmatively denied memory problems several times, as on a June 1994 separation examination. The degree of memory loss, or even the credibility of the Veteran's reports of onset from an earlier date, however, are not relevant to the service connection question. The focus instead is on the relationship, if any, to service. The Veteran maintains that his memory loss is a manifestation of some undiagnosed illness contracted as a result of his SWATO service from 2004 to 2006, when memory problems were first credibly reported and documented. The Board disagrees. As the Veteran reports his treating doctors have stated to him, and as the most recent March 2012 VA examiner has indicated, any currently diagnosed memory loss is in fact a manifestation of already service-connected PTSD. This means both that there is no undiagnosed illness, as the preponderance of the competent and credible opinions of record attribute the claimed symptom to a known clinical diagnosis, and that memory problems are already effectively service-connected and compensated as part of the Veteran's service-connected PTSD. Memory problems are specifically included in the criteria for PTSD evaluation. 38 C.F.R. §§ 3.317(a)(1)(ii), 4.130. Separate service connection is not available for memory problems. Doctors have repeatedly decline to diagnose a specific memory loss condition, and have clearly described the loss as a symptom of PTSD and complicating alcohol abuse. An additional separate award would constitute prohibited pyramiding. 38 C.F.R. § 4.14. The preponderance of the evidence is against the claim; there is no doubt to be resolved. Service connection is not warranted for a disability manifested by memory loss. Increased Evaluations In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. 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 the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Headache Disorder Headache disorders are rated under Code 8100, for migraine headaches. Although there is, despite the statement of an October 2011 VA examiner, no diagnosis of migraines here, application of Code 8100 is by analogy, based on the functions affected, anatomical localization, and associated symptomatology of the diagnosed tension headaches. 38 C.F.R. § 4.20. Code 8100 provides that characteristic prostrating attacks averaging one in two months over the last several months are rated 10 percent disabling; less frequent attacks are rated noncompensable. With characteristic prostrating attacks occurring on an average once a month over the last several months, a 30 percent evaluation is warranted. A 50 percent rating is assigned for very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Code 8100. Staged evaluations are currently assigned; the condition is noncompensable prior to October 14, 2011, and rated 30 percent thereafter. Both stages are on appeal. At a November 2006 VA neurological examination, the Veteran reported that he had experienced headaches since 1992. [The Board notes that service connection for headaches was denied in a final January 2003 Board decision; the current award is based on a reopened claim received in March 2006.] They occurred about three times a week and would last for three to four hours. The Veteran described a sharp, radiating pain beginning in the occipital area and moving forward. There were no known triggers, and were relieved by rest. He did not seek treatment for the headaches, which were consistent in intensity, duration, and frequency. He did not report any associated aura or other symptoms. The Veteran stated that he had not missed any work because of headaches, and could drive with a headache "if he has to." Physical examination was normal. Tension headaches were diagnosed. The same VA examiner saw the Veteran again in November 2008. The Veteran stated that he had headaches three to four times a week, lasting 15 to 20 minutes apiece. The pain was located at the front and sides of the head, and were marked by a sharp, throbbing pain. Light aggravated them, and dark glasses helped. He did not see a doctor for headaches. He reported that the headaches had not changed much in intensity, duration, and frequency; they had their onset in 1993. Although on administrative leave from his job, the Veteran stated that headaches had not caused him to miss work, but that he now did not drive if he had a headache. Physical examination was again normal and tension headaches were again diagnosed. The examiner also noted a September 2000 VA contract examination contained in the claims file, which diagnosed "muscle contraction headaches." A VA examination was conducted in October 2011; the examiner indicated a diagnosis of migraine headaches had been made. Although this is incorrect, the error is harmless, as the labeling did not affect the description of current manifestations of headache. The Veteran reported that his headaches began in 2004 after a rocket attack in Iraq. He felt he had a concussion, but returned to work. He stated that his headaches were getting worse. He took no medication for headaches. The Veteran reported pulsating pain on the left side of the head, with associated nausea, vomiting, light and sound sensitivity, and vision changes. Headaches lasted less than a day, but occurred more frequently than once a month. The examiner described them as very frequent prostrating and prolonged attacks. Consistent with the Veteran's statement to the November 2006 and November 2008 examiners, VA treatment records reflect no treatment for, or even a carried diagnosis of, any headache disorder. The Board notes that despite the Veteran's assertions of constancy of his headaches at November 2006 and November 2008 examinations, his descriptions of their frequency, severity, and duration has varied quite markedly over the course of his appeal. Nevertheless, there is a clear worsening of the service-connected condition shown on the October 14, 2011, VA examination. Prior to that date, the evidence of record does not show any prostrating attacks. The Veteran did not report that he was incapacitated by the headaches, and in fact asserted that he was able to work; his suspension in November 2008 was unrelated to headaches. He required no treatment, and generally appeared able to perform activities in his daily life. For example, he was capable of driving, though he did so only "if he had to" during a headache, and later decided not to do so. However, the headaches also occurred with great frequency, three or four times a week. The criteria include frequency of headaches as a consideration in rating. Importantly, the Veteran is, despite the October 2011 VA examiner's bare and unsupported assertion, not diagnosed with migraines; he has tension headaches, and the application of the criteria is therefore by analogy. 38 C.F.R. § 4.20. "Characteristic" prostrating attacks would not therefore be expected, and reliance upon their presence for evaluation would not be consistent with the disability picture presented. Instead, the Board finds that the greater frequency of the Veteran's tension headaches must take on a commensurate greater importance. The evidence prior to October 2011 demonstrates that multiple tension headaches a week had a mild impact upon the Veteran's daily functioning. They caused him to reassess his ability to drive, for example, and were best treated with rest. This level of impairment from tension headaches most closely reflects the disability picture for a 10 percent evaluation under the migraine criteria. A higher, 30 percent evaluation is not warranted, as the analogy to migraines must reflect not only the frequency of headaches, but the functional impact. Three to four non-prostrating headaches a week, with little impact on functioning, is simply not the equivalent of monthly prostrating attacks. In sum, prior to October 14, 2011, the evidence of record warrants assignment of an increased 10 percent initial evaluation for the service-connected headache disorder, by analogy to migraines. No higher evaluation is warranted for this period, as the described functional impairment is no greater than mild. Effective October 14, 2011, a 30 percent evaluation has been assigned. A higher 50 percent evaluation is not warranted unless "completely prostrating and prolonged attacks" are shown, and these result in "severe economic inadaptability." The October 2011 examiner did indeed describe the Veteran's headaches as prolonged; however, this description is somewhat at odds with the finding that the headaches typically lasted less than one day. Further, despite the descriptions of associated vomiting, nausea, light and sound sensitivity, and vision changes, the examiner also specified that the headaches did not impact the Veteran's ability to work. The Veteran himself has indicated several times that other than the period of his suspension, he has continued to hold a job, and he has not reported missed days due to headaches. He has reported recently, as in a September 2012 VA treatment record, that he had "missed a fair amount of work" but he reported that this was due to orthopedic pain, from his back, neck, and various joints. The evidence of record does not reflect severe economic inadaptability. There is simply no indication or statement that headaches have actually interfered to any large degree with the Veteran's employment. Further, despite the frequency of the headaches, the attacks are reported to be of relatively short duration; the examiner selected the smallest duration possible on the examination worksheet. Accordingly, the criteria for assignment of an evaluation in excess of 30 percent for a headache disorder are not met since October 14, 2011. Consideration has been given to the possibility of assignment of an extraschedular evaluation under 38 C.F.R. § 3.321 for both stages of evaluation. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology. Id. At 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. If the schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. At 116. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. With regard to headaches, the rating criteria are adequate. They fully account for the Veteran's complaints of frequency and severity of headaches, and provide greater levels of disability for higher levels of impairment, not shown here. No further discussion of extraschedular entitlement is required. GERD GERD is rated by analogy to hiatal hernia, under Code 7346. The analogy is highly appropriate, as the signs and symptoms associated with GERD closely mirror those for a hiatal hernia. A 30 percent evaluation is assigned for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 10 percent evaluation, as is currently assigned, is merited for two or more symptoms associated with a 30 percent evaluation, but of less severity. A maximum schedular evaluation of 60 percent is assigned for pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114, Code 7346. At a November 2006 VA examination, the Veteran reported a persistent history of heartburn (pyrosis) and indigestion, which he treated unsuccessfully with over the counter antacids. More recently, he was prescribed medication, and his symptoms abated completely. When he was on medication, his GERD was controlled; after even a short time without, symptoms recurred. At the time of the examination, he could not afford medication, and he reported considerable heartburn and daily acid reflux into his throat. He had no chest pain or trouble swallowing, but had some nausea after meals. No overall impairment of health was noted. The Veteran underwent a second VA examination in November 2008. He was again using prescription medications to control his chronic heartburn. He reported a history of daily pyrosis and weekly esophageal distress. Clinical testing was normal. No impact on health or daily activity was noted. At an October 2011 VA examination, the Veteran reported persistently recurrent epigastric distress, pyrosis, reflux, and disturbed sleep due to reflux four or more times a year. He also endorsed nausea, vomiting, and melena (tarry stools) at the same frequency. He denied arm or substernal pain. The examiner stated that there was no impact on the Veteran's ability to work. VA treatment records show continued prescription of medication for GERD, with apparently good results; the Veteran denied gastrointestinal symptoms several times. In September 2012, treating doctors noted that GERD was under good control. Additionally, in December 2008, the Veteran was contacted regarding his interest in the MOVE! weight management program. It is unquestioned that in the absence of medication, the Veteran has heartburn and regurgitation or reflux. He has also alleged episodes of vomiting and nausea, though these are not reflected in the record and are contradicted by repeated notations and reports of good symptom control with prescription medication. These findings justify the currently assigned 10 percent evaluation. However, higher evaluations also require additional manifestations. There has been no report of substernal or arm pain, and the Veteran has in fact denied such. No anemia has been reported or found as a result of alleged melena or hematemesis. No material weight loss is noted; the Veteran has in fact sought to lose weight. Most importantly, however, no doctor has described, nor has the Veteran alleged, any overall impairment of health. "Considerable" or "severe" impairment are required for higher evaluations. This is not to say that the GERD symptoms are not troublesome; it is merely a finding that they have not caused complications or systemic weaknesses which impact the Veteran's daily life. His symptoms are well-controlled by medications, and do not interfere with daily activity. Consideration has again been given to the possibility of assignment of an extraschedular evaluation under 38 C.F.R. § 3.321. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). The rating criteria are adequate for GERD. They fully account for the Veteran's complaints of heartburn, reflux, and vomiting or nausea, and provide greater levels of disability for higher levels of impairment, not shown here. No further discussion of extraschedular entitlement is required. No higher evaluation is warranted. The preponderance of the evidence is against the claim; there is no doubt to be resolved. Left Ear Hearing Loss Assignment of a disability rating for hearing loss is derived by a mechanical application of the rating schedule to the specific numeric designations assigned after audiology testing is completed. Lendenmann v. Principi, 3 Vet. App. 345 (1992). An examination for hearing impairment for VA purposes must be conducted by a state-licensed audiologist and must include a controlled speech discrimination test (Maryland CNC) and a pure tone audiometry test. 38 C.F.R. § 4.85. Evaluations of defective hearing 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 audiometry tests in the frequencies 1000, 2000, 3000 and 4000 cycles per second, with 11 auditory acuity levels designated from Level I for essentially normal acuity through Level XI for profound deafness. 38 C.F.R. § 4.85. In addition, when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) are all 55 decibels or more, the adjudicator must determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa in 38 C.F.R. § 4.85, whichever results in the higher numeral. 38 C.F.R. § 4.86(a). When the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIa, whichever results in the higher numeral. That numeral will then be elevated to the next higher Roman numeral. 38 C.F.R. § 4.86(b). Each ear will be evaluated separately; however, if a hearing loss in one ear is not service-connected, that ear shall be considered to have an impairment level of I. 38 C.F.R. § 4.85(f). The actual degree of hearing impairment for a nonservice-connected ear may be used to calculate the assigned hearing loss evaluation when the service-connected ear, when intersected with a Level I impairment for the nonservice-connected ear, justifies a compensable evaluation. 38 C.F.R. § 3.383. The Veteran here is not service-connected for right ear hearing loss, as at no time has testing shown that the hearing impairment in that ear meets the requirements for a disability for VA purposes. 38 C.F.R. § 3.385. The Veteran has not currently alleged that service connection for the right ear should be granted. Therefore, right ear hearing impairment is considered to be at Level I for purposes of calculating the evaluation. 38 C.F.R. § 4.85(f). VA audiometric testing in May 2006, when the Veteran complained of difficulty with background noise, showed: Hertz CNC 1000 2000 3000 4000 Average Left 10 20 45 50 31.25 100 From Table VI of 38 CFR 4.85, Roman Numeral I is derived for the left ear. This is determined by intersecting the percent of speech discrimination row with the puretone threshold average column. Since the right ear is not service connected, a roman numeral I is used in Table VII of 38 CFR 4.85. Either ear can be used as the poorer ear for 38 CFR 4.85's Table VII as they both equate to the same Roman Numeral. A 0 percent evaluation is derived from Table VII of 38 CFR 4.85 by intersecting row I, the better ear, with column I, the poorer ear. In November 2008, the Veteran reported that he had difficulty hearing conversation against background noise. He denied any change in the condition since the last examination. VA testing showed: Hertz CNC 1000 2000 3000 4000 Average Left 10 20 50 55 33.75 100 From Table VI of 38 CFR 4.85, Roman Numeral I is derived for the left ear. This is determined by intersecting the percent of speech discrimination row with the puretone threshold average column. Since the right ear is not service connected, a roman numeral I is used in Table VII of 38 CFR 4.85. Either ear can be used as the poorer ear for 38 CFR 4.85's Table VII as they both equate to the same Roman Numeral. A 0 percent evaluation is derived from Table VII of 38 CFR 4.85 by intersecting row I, the better ear, with column I, the poorer ear. The Veteran has not been examined for hearing loss since November 2008, but has also not reported any worsening of his condition. The Board in fact notes that the Veteran excluded this issue from his March 2009 substantive appeal. Accordingly, at no time during the appellate period has the Veteran met the Schedular requirements for a compensable evaluation. No increased evaluation for left hear hearing loss is warranted. Consideration has again been given to the possibility of assignment of an extraschedular evaluation under 38 C.F.R. § 3.321. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). The Veteran complains of difficulty hearing and distinguishing sounds, particularly speech against background noise These are exactly the considerations accounted for by the Schedular criteria. Puretone thresholds measure hearing sensitivity, and speech discrimination scores consider the practical application of that sensitivity. The Schedule allows for higher evaluations for levels of impairment simply not shown here. The Schedule is adequate, and no further discussion of 38 C.F.R. § 3.321 is required. ORDER Service connection for a condition manifested as memory loss is denied. An increased initial evaluation of 10 percent, but no higher, for a headache disorder prior to October 14, 2011, is granted, subject to regulations applicable to the payment of monetary benefits. An initial evaluation in excess of 30 percent for a headache disorder, since October 14, 2011, is denied. An initial evaluation in excess of 10 percent for GERD is denied. A compensable evaluation for left ear hearing loss is denied. REMAND With regard to the eye disability, remand is required for compliance with VA"s duty to assist the Veteran in substantiating his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran complains of eye pain. VA examiners have noted dry eyes and photophobia, as well as ocular neuralgia, but have not clearly identified an etiology for such. There has been discussion of the impact of an alleged injury from a metal fragment in 2004, or a possible link to service-connected headaches, or nonservice-connected myopia and LASIK surgery. In October 2011, a VA examiner indicated that he felt further work-up was required, though he is unclear exactly why. Moreover, a November 2008 VA examiner appears to apply an incorrect legal standard, stating that a "definitive etiology" for eye problems, to include an opinion on a nexus to service, could not be rendered without resort to speculation. The standard of proof is whether it is at least as likely as not a current disability is related to service; a definitive etiology is not required. For these reasons, remand for a new VA examination is required. Moreover, the file indicates the existence of outstanding private treatment records. The Veteran underwent LASIK surgery in 2006, at Wake Forest University Hospital; records of such are not associated with the claims file. He also indicated at the November 2008 examination that he was last treated in 2007 at Baptist Hospital in Winston-Salem. These records have also not been sought. Both sets of private records are potentially relevant, as they will provide detail regarding the Veteran's history of eye problems and show his status prior to any surgery. This may be especially germane to a determination regarding his allegations of a combat injury to the left eye. Records show a corneal scar, but STRs are silent. Complete eye records will be helpful in determining whether the left eye scar is a recent or remote occurrence. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and request properly executed, separate VA form 21-4142's, Authorization and Consent to Release Information to the Department of Veterans Affairs, for all private care providers who have treated him for eye complaints. Releases for Wake Forest University Hospital (or other LASIK surgery provider) and Baptist Hospital must be specifically requested. Upon receipt of such, VA must take appropriate action to contact the identified providers and request all records. The Veteran should be informed that in the alternative he may obtain and submit the records himself. 2. Associate with the claims file updated VA treatment records from the VA medical centers in Durham and Salisbury, and all associated clinics, as well as any other VA facility identified by the Veteran or in the record, for the period of April 2013 to the present. 3. After completion of the above, schedule the Veteran for a VA eye examination. The claims folder must be reviewed in conjunction with the examination. The examiner must identify all current diagnoses of the eyes. The examiner must opine as to whether any such diagnoses are at least as likely as not related to (caused or aggravated by) service or a service-connected disability. If any current eye complaint (pain, dry eyes, photophobia, etc.) cannot be associated with a known diagnosis, such must be stated clearly. The examiner must also opine as to whether any such complaints/manifestations are at least as likely as not related to (caused or aggravated by) service (to include service in the Persian Gulf) or a service-connected disability. A full and complete rationale for any opinion expressed is required. The examiner is reminded that the term "as likely as not" does not mean "within the realm of medical possibility," but rather that the evidence of record is so evenly divided that, in the examiner's expert opinion, it is as medically sound to find in favor of the proposition as it is to find against it. If the examiner feels that the requested opinion cannot be rendered without resorting to speculation, the examiner must state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training). Jones v. Shinseki, 23 Vet. App. 382 (2010). 4. Review the claims file to ensure that all of the foregoing requested development is completed, and arrange for any additional development indicated. Then readjudicate the claim on appeal. If the benefit sought remains denied, issue an appropriate supplemental statement of the case and provide the Veteran and his representative the requisite period of time to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs