Citation Nr: 1015845 Decision Date: 04/29/10 Archive Date: 05/06/10 DOCKET NO. 05-38 756A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for hypertension secondary to service-connected post-traumatic stress disorder (PTSD) with depressive disorder. 2. Entitlement to an initial disability rating in excess of 10 percent for service-connected loss of sense of taste. 3. Entitlement to a disability rating in excess of 10 percent for service-connected loss of sense of smell. 4. Entitlement to an initial disability rating in excess of 10 percent for service-connected headaches. 5. Entitlement to an initial disability rating in excess of 50 percent for service-connected PTSD with depressive disorder. REPRESENTATION Veteran represented by: Darla J. Lilley, Esq. ATTORNEY FOR THE BOARD J. Alsup, Counsel INTRODUCTION The Veteran served on active duty from September 1985 to February 1987. This matter comes before the Board of Veterans' Appeals (the Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. Procedural history In a January 2005 rating decision, the RO granted service connection for a depressive disorder, headaches, and loss of sense of taste, and denied a compensable evaluation for service-connected loss of sense of smell. The Veteran disagreed with the disability ratings and effective dates provided by the RO and he perfected an appeal. In November 2006, the RO increased the disability evaluation for service-connected loss of sense of smell to 10 percent disabling. In a July 2008 rating decision, the RO denied the Veteran's claim for service connection for hypertension and granted service connection for PTSD, recharacterizing the issue as PTSD with depressive disorder to reflect the current psychiatric disorder to include that which was already service-connected, and continued the 50 percent disability evaluation. The Veteran filed a notice of disagreement (NOD) with the denial of service connection for hypertension and sought entitlement to separate compensation benefits for his service-connected depressive disorder and service-connected PTSD. In a December 2008 decision and remand, the Board denied the Veteran's claims for earlier effective dates, and remanded the claims for service connection for hypertension and for increased disability ratings for further evidentiary and procedural development. The extraschedular aspect of the Veteran's increased rating claim for service-connected PTSD with depressive disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Department of Veterans Affairs Regional Office. FINDINGS OF FACT 1. The Veteran's hypertension is aggravated by his service- connected PTSD. 2. The Veteran's service-connected loss of sense of taste is manifested by the ability to sense the taste of sugar and salt but not acidic tastes, and is currently rated at the maximum disability rating provided by regulation. 3. The Veteran's service-connected loss of sense of smell is manifested by the inability to smell and is currently rated at the maximum disability rating provided by regulation. 4. The Veteran's service-connected headaches occur about once per week; generally last for about one hour, without tearing, nausea or vomiting; and are controlled by over the counter medications. 5. The Veteran's PTSD with depressive disorder is manifested by feelings of detachment, difficulty controlling anger, sleep problems, and lack of motivation; but without obsessive behavior, suicidal or homicidal ideation, or delusions or hallucinations. It is also manifested by unremarkable thought process and content with normal speech. CONCLUSIONS OF LAW 1. Entitlement to service connection for hypertension is warranted. 38 U.S.C.A. § 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.310 (2009). 2. The criteria for an initial disability rating in excess of 10 percent for service-connected loss of sense of taste have not been met. 38 U.S.C.A. § 1155 (2002); 38 C.F.R. §§ 3.321, 4.1, 4.87a, Diagnostic Code 6276 (2009); 38 C.F.R. § 4.124a, Diagnostic Code 8045 (as in effect prior to October 23, 2008). 3. The criteria for an initial disability rating in excess of 10 percent for service-connected loss of sense of smell have not been met. 38 U.S.C.A. § 1155 (2002); 38 C.F.R. §§ 3.321, 4.1, 4.87a, Diagnostic Code 6275 (2009); 38 C.F.R. § 4.124a, Diagnostic Code 8045 (as in effect prior to October 23, 2008). 4. The criteria for an initial disability rating in excess of 10 percent for service-connected headaches have not been met. 38 U.S.C.A. § 1155 (2002); 38 C.F.R. §§ 3.321, 4.1, 4.124a, Diagnostic Code 8100 (2009). 5. The criteria for an initial disability rating in excess of 50 percent for service-connected PTSD with depression have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.130, Diagnostic Code 9411 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran generally contends that his service-connected conditions are worse than recognized by VA and that he is entitled to higher disability ratings. He also contends that he is entitled to service connection for hypertension which he argues is aggravated by his service-connected PTSD with depressive disorder. The Board will first address preliminary matters and then render a decision on the issues on appeal. Stegall concerns In Stegall v. West, 11 Vet. App. 268, 271 (1998), the United States Court of Appeals for Veterans Claims (the Court) held that compliance with remand instructions is neither optional nor discretionary. The Court further held that the Board errs as a matter of law when it fails to ensure compliance with remand orders. As noted above, the Board remanded the Veteran's claims for further procedural and evidentiary development. Specifically, the Board ordered the RO to issue a statement of the case (SOC) addressing the issue of entitlement to service connection for hypertension. The Board further directed the RO to ensure all legally required notice was completed and to obtain VA treatment records from March 2004. Although the RO is required to comply with remand orders, it is substantial compliance, not absolute compliance that is required. See Dyment v. West, 13 Vet.App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand, because such determination "more that substantially complied with the Board's remand order"). The record shows the Veteran was provided with an SOC addressing service connection for hypertension in November 2009. The record also includes VA treatment records from March 2004, and the record shows, as is discussed more thoroughly below, that all required notice to the Veteran was completed. For those reasons, the Board finds that the RO substantially complied with the December 2008 remand orders. Duties to notify and assist Upon receipt of a substantially complete application for benefits, VA must notify the claimant what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed. 38 U.S.C.A. §§ 5103(a), 5103A (West 2002); 38 C.F.R. § 3.159(b) (2009); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The notice required must be provided to the claimant before the initial unfavorable decision on a claim for VA benefits, and it must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2009). The issues of an increased disability rating for service- connected loss of sense of taste, headaches and PTSD are claims for an increased initial disability. The United States Court of Appeals for the Federal Circuit and the Court have held that 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); Goodwin v. Peake, 22 Vet.App. 128 (2008). See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007). With regard to the issue of an increased disability rating for loss of sense of smell, the Board observes that the RO informed the Veteran in a March 2004 letter that to substantiate a claim for increased rating, the evidence must show that his service-connected disability has gotten worse. With regard to the issue of secondary service connection for hypertension, the Veteran was not notified of the evidence needed to substantiate a claim. However, as discussed below, the Board is granting service connection for hypertension. Thus, any failure of the RO to properly inform the Veteran results in no prejudice to the Veteran. In addition to the March 2004 letter, the Veteran was also informed in letters dated in January 2007 and February 2009 that VA would assist him by obtaining relevant records which would support his claims and provide him, if necessary, with a medical examination. He was further informed in March 2006, January 2007, October 2008, and February 2009 letters of how VA determines a disability rating and an effective date. The notices were sent prior to the date of the last adjudication of the Veteran's claims in August 2007 and November 2009. Thus, the Veteran had a meaningful opportunity to participate in the adjudication of his claims. See Overton v. Nicholson, 20 Vet. App. 427, 435 (2006). Finally, the Veteran has not contended, nor does the record indicate that his claims have been prejudiced by a lack of notice. See Goodwin v. Peake, 22 Vet.App. 128 (2008). The Board observes that the RO has obtained and included VA treatment records in addition to his service treatment records. The Veteran has also been provided with VA medical examinations pertaining to his headache, loss of senses, and psychiatric disabilities. 38 C.F.R. § 3.159(c) (4) (2009). As noted below, the Board finds that the medical evidence obtained in this case is more than adequate to rate his disabilities. The psychiatric evidence discusses in detail the impact that the Veteran's PTSD with depressive disorder has on his social and occupational functioning as well as his employability. The examination report reflects consideration of the Veteran's statements and provides a complete rationale for the opinion stated. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion has been met. The Board finds that under the circumstances of this case, VA has satisfied the notification and duty to assist provisions of the law and that no further actions pursuant to the VCAA need be undertaken with respect to the claims decided herein. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2009). The Veteran has been represented by an attorney throughout the pendency of the appeal and has chosen not to present evidence and testimony in support of his claims at a hearing before a Veterans Law Judge. Entitlement to service connection for hypertension secondary to service-connected PTSD. Service connection - secondary Service connection may be established on a secondary basis for a disability that is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a) (2009). See Harder v. Brown, 5 Vet. App. 183, 187 (1993). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(a). See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In order to prevail on the issue of entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical nexus evidence establishing a connection between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). Analysis As indicated above, the Veteran claims that his hypertension is aggravated by his service-connected PTSD with depressive disorder. He seeks service connection on a secondary basis. The Board will address each Wallin element. With regard to element (1), the medical evidence clearly establishes that the Veteran has hypertension. With regard to element (2), the record shows that the Veteran is service- connected for PTSD with depressive disorder. With regard to element (3), the record includes a November 2009 VA examination report that it was at least as likely as not that the Veteran's PTSD with depressive disorder aggravated his hypertension. Thus, element (3) is satisfied. The Board finds that the Veteran is entitled to service connection for hypertension. The claim is granted. Entitlement to an initial disability rating in excess of 10 percent for service-connected loss of sense of taste. Entitlement to a disability rating in excess of 10 percent for service-connected loss of sense of smell. Because the issues present similar facts and similar criteria, the Board will address them together. Relevant law and regulations Increased ratings - in general Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2009). 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 disorders in civil occupations. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.321(a), 4.1 (2009). Assignment of diagnostic code The Veteran's service-connected loss of sense of taste is rated under Diagnostic Codes 8045 (brain disease due to trauma)-6276 (loss of sense of taste), and his service- connected loss of sense of smell is rated under Diagnostic Codes 8045 (brain disease due to trauma)-6275 (loss of sense of smell). A hyphenated code is used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation. 38 C.F.R. § 4.27 (2009). Where there is brain disease due to trauma, with purely neurological disabilities, such as hemiplegia, epileptiform seizures, facial nerve paralysis, etc., following trauma to the brain, rating will be effected under the diagnostic codes specifically dealing with such disabilities, with citation of a hyphenated Diagnostic Code. 38 C.F.R. § 4.124a, Diagnostic Code 8045 (as in effect prior to October 23, 2008). Purely subjective complaints, such as headache, dizziness, insomnia, etc., recognized as symptomatic of brain trauma, will be rated 10 percent and no more under Diagnostic Code 9304. Id. (The Board notes that Diagnostic Code 8045 (residuals of traumatic brain injury) was revised effective October 23, 2008. See 73 Fed. Reg. 54693-708 (Sept. 23, 2008). The amendment provides that the revised provisions will apply to all applications for benefits received on or after October 23, 2008. Thus, the revised provisions do not apply to the Veteran's appeal. A veteran whose residuals of traumatic brain injury were rated under a prior version of 38 C.F.R. § 4.124a, Diagnostic Code 8045 is permitted to request a review under the new criteria, irrespective of whether his disability has worsened since the last review or whether VA receives additional evidence. See 73 Fed. Reg. 54,693 (September 23, 2008)). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Diagnostic Codes 6275 and 6276 are deemed by the Board to be the most appropriate because they pertain specifically to the primary diagnosed disabilities in the Veteran's case (loss of sense of smell and taste). The Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate, and neither the Veteran nor his attorney has requested that another diagnostic code be used. Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Codes 6275 and 6276. Schedular rating criteria Diagnostic Code 6275 provides a maximum 10 percent disability rating for complete loss of sense of smell. Diagnostic Code 6276 provides a maximum 10 percent disability rating for complete loss of sense of taste. Schedular rating As noted, the Veteran is currently assigned a 10 percent disability rating under both Diagnostic Codes 6275 and 6276. As stated above, a 10 percent disability rating is the highest schedular rating available both diagnostic codes. As such, the Board is unable to grant a higher schedular rating for either service-connected loss of sense of smell or service-connected sense of taste. Entitlement to an initial disability rating in excess of 10 percent for service-connected headaches. The relevant law and regulations for increased disability ratings have been stated above and will not be repeated here. Assignment of diagnostic code The Veteran's service-connected headaches have been rated under Diagnostic Code 9304 for dementia due to head trauma. The Board observes that the Veteran has been diagnosed with headaches associated with traumatic brain disease. While Diagnostic Code 8100 (migraine) is not precisely the diagnosed disorder, an unlisted condition may be rated under a closely related disease or injury in which the functions affected, anatomical localization, and symptomatology are closely analogous, and as such Diagnostic Code 8100 provides the most appropriate rating criteria. 38 C.F.R. § 4.20 (2009). Neither the Veteran nor his attorney has contended that any other diagnostic code is more appropriate, and the Board is not aware of any more appropriate diagnostic code. Therefore, the Board finds that Diagnostic Code 8100 is the most appropriate criteria to rate the Veteran's disability. Schedular rating criteria Diagnostic Code 8100 provides a 50 percent disability rating for headaches with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. A 30 percent disability rating is provided for headaches with characteristic prostrating attacks occurring on an average once a month over last several months. A 10 percent disability rating is provided for headaches with characteristic prostrating attacks averaging one in 2 months over last several months. 38 C.F.R. § 4.124a, Diagnostic Code 8100. The rating criteria do not define "prostrating," nor has the Court. Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (quoting Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack.). By way of reference, the Board notes that according to WEBSTER'S NEW WORLD DICTIONARY OF AMERICAN ENGLISH, THIRD COLLEGE EDITION (1986), p. 1080, "prostration" is defined as "utter physical exhaustion or helplessness." A very similar definition is found in DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1367 (28th Ed. 1994), in which "prostration" is defined as "extreme exhaustion or powerlessness." Schedular rating The Veteran's headaches were described by a May 2004 VA examiner as manifested by bitemporal headaches occurring about once per week and which generally last for about one hour, without tearing, nausea or vomiting, and are controlled by over the counter medications. The examiner also stated that the Veteran was able to work through the headache pain, but that activity made the headache worse. The Veteran was reported not to have any sensation, weakness or functional loss from the headaches. There is no report of prostrating headaches or attacks which occur with the Veteran's headaches. The Veteran stated in a September 2007 statement that he agreed with the 10 percent disability rating for headaches. Medical examinations regarding other medical conditions do not provide any other information regarding the nature or frequency of the Veteran's headaches. In sum, after review of the entire record, the Board finds that the Veteran's headache symptoms do not meet the criteria of a 30 percent disability rating. While the frequency of his headaches meet the criteria, the nature of the headaches is much less severe than those contemplated in the 30 percent criteria. For example, there is no evidence of "characteristic prostrating attacks." Rather, the Veteran's headaches last an hour and are controlled by over the counter medications. For those reasons, the Board finds that the benefits sought on appeal are not warranted. Entitlement to an initial disability rating in excess of 50 percent for service-connected PTSD with depression. Clarification of issue on appeal As indicated in the Introduction above, the Veteran contends that he is entitled to separate evaluations for his service- connected PTSD and his service-connected depression. The Board notes a February 2007 VA psychiatric examiner explained that the Veteran did not meet the diagnostic criteria for PTSD because he could not remember the stressor event. To summarize, the Veteran was injured during service when he was struck by a motorcycle. The collision resulted in him being unconscious for a relatively lengthy period of time, and the resulting traumatic brain injury left him unable to remember the accident. Subsequently, a VA examiner evaluated the Veteran in June 2008 and determined that the Veteran met the diagnostic criteria for PTSD. The examiner noted diagnoses of chronic PTSD and depressive disorder, not otherwise specified. It is not clear whether the examiner made a determination that the Veteran had a new diagnosis or had two psychiatric diagnoses. Under general rating regulations for mental disorders, if a diagnosis of a mental disorder is changed, the rating official shall determine whether the new diagnosis represents progression of the prior diagnosis, correction of an error in the prior diagnosis, or development of a new and separate condition. See 38 C.F.R. § 4.125(b) (2009). The Board further observes that evaluations of the same disabilities under different diagnoses are to be avoided. See 38 C.F.R. § 4.14 (2009). The Veteran's attorney has contended in an October 2007 submission entitled "Request for Decision Review Officer and Board Review," that: PTSD and Depression are separate and distinct disorders. The DSM-IV provides separate diagnostic criterion for each disorder. While some symptoms may overlap, Depression is simply not PTSD. The Board can not argue with the Veteran and his attorney's observations that depression and PTSD have separate and distinct diagnostic criteria in DSM-IV. However, it is abundantly clear from the June 2008 VA examiner's report that the two disorders, if they are two separate disorders, cannot be separated. The Board observes that depression and PTSD have the same disability rating criteria and the Board will rate the single disability picture presented by the Veteran's psychiatric disability. The Veteran's contention that he has separate, "stand alone" psychological disabilities does not stand up to common sense scrutiny. As discussed immediately above, the Board has rejected that contention based upon the medical evidence of record; the symptoms are incapable of being separated. If the Veteran believes that his situation may entitle him to a separate rating for psychological symptomatology which is attributable to the service-connected depression and PTSD, he is referred to Esteban v. Brown, 6 Vet. App. 259, 262 (1994) which notes that service connection for distinct disabilities resulting from the same injury could be established so long as the symptomatology for one condition was not "duplicative of or overlapping with the symptomatology" of the other condition. As found by the examiner, the symptomatology is too intertwined to be teased out and separated. For those reasons, and for the reasons stated below, the Board finds that the single issue on appeal is entitlement to an initial disability rating in excess of 50 percent for service-connected PTSD with depressive disorder. Assignment of a diagnostic code The Veteran's PTSD with depressive disorder has been evaluated under 38 C.F.R. § 4.130 Diagnostic Codes 9435 (mood disorder) and 9411 (PTSD). Diagnostic Code 9411 is deemed by the Board to be the most appropriate primarily because it pertains specifically to the primary diagnosed disability in the Veteran's case. The Board can identify nothing in the evidence to suggest that another diagnostic code would be more appropriate, and neither the Veteran nor his attorney has requested that another diagnostic code be used. In any event, all psychiatric disabilities, except eating disorders, are rating using identical schedular criteria. Accordingly, the Board concludes that the Veteran is appropriately rated under Diagnostic Code 9411. Specific schedular criteria Under 38 C.F.R. § 4.130, Diagnostic Code 9411 (2009), a 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing effective work and social relationships. A 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. A 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Global Assessment of Functioning Global Assessment of Functioning (GAF) scores are a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health- illness." See Carpenter v. Brown, 8 Vet. App. 240, 242 (1995); see also Richard v. Brown, 9 Vet. App. 266, 267 (1996) (citing the American Psychiatric Association's DIAGNOSTIC AND STATISTICAL MANUAL FOR MENTAL DISORDERS, Fourth Edition (DSM-IV), p. 32). GAF scores ranging from 81 to 90 reflect absent or minimal symptoms (e.g., mild anxiety before an exam), good functioning in all areas, interested and involved in a wide range of activities, socially effective, generally satisfied with life, no more than everyday problems or concerns (e.g., an occasional argument with family members). GAF scores ranging from 71 to 80 reflect that if symptoms are present they are transient and expectable reactions to psychosocial stressors (e.g., difficulty concentrating after family argument; no more than slight impairment in social, occupational, or school functioning (e.g., temporarily falling behind in schoolwork). GAF scores ranging from 61 to 70 reflect some mild symptoms (e.g., depressed mood and mild insomnia) or some difficulty in social, occupational, or school functioning (e.g., occasional truancy, or theft within the household), but generally functioning pretty well, and has some meaningful interpersonal relationships. GAF scores ranging from 51 to 60 reflect more moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks) or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co- workers). Scores ranging from 41 to 50 reflect serious symptoms (e.g., suicidal ideation, severe obsessional rituals, frequent shoplifting) or any serious impairment in social, occupational or school functioning (e.g., no friends, unable to keep a job). See 38 C.F.R. § 4.130 [incorporating by reference the VA's adoption of the DSM-IV, for rating purposes]. Scores ranging from 31 to 40 reflect some impairment in reality testing or communication (e.g., speech is at times illogical, obscure, or irrelevant) or major impairment in several areas, such as work or school, family relations, judgment, thinking, or mood (e.g., depressed man avoids friends, neglects family, and is unable to work; child frequently beats up other children, is defiant at home, and is failing at school). A score from 21 to 30 is indicative of behavior which is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or inability to function in almost all areas. A score of 11 to 20 denotes some danger of hurting one's self or others (e.g., suicide attempts without clear expectation of death; frequently violent; manic excitement) or occasionally fails to maintain minimal personal hygiene (e.g., smears feces) or gross impairment in communication (e. g., largely incoherent or mute). A GAF score of 1 to 10 is assigned when the person is in persistent danger of severely hurting self or others (recurrent violence) or there is persistent inability to maintain minimal personal hygiene or serious suicidal acts with clear expectation of death. See 38 C.F.R. § 4.130 Diagnostic Code 9411 (2009). Schedular rating Preliminarily, as noted above, the Veteran was involved in an accident during active duty service. While serving at Roosevelt Roads Naval Station in Puerto Rico in August 1986, he was a pedestrian and was struck by a speeding motorcycle. The impact caused severe head injuries and required a long period of recovery. The record includes a July 2004 VA examination report which notes that the Veteran complained of problems dealing with anger and that he did not like to be around large groups, and reported anxiety attacks when he was exposed to large groups or in a confrontation. The Veteran reported sleep disturbances in that he woke up several times a night, but he denied nightmares or flashbacks. He reported he had a good relationship with a daughter for whom he was not the custodial parent, and reported a good relationship with his current wife. The examiner observed that the Veteran was well-groomed, his speech was normal and spontaneous, and his thought process was logical, substantial, and goal oriented. The Veteran's mood was described as "tired." The Veteran denied suicidal or homicidal ideation and did not report hallucinations or delusions. His insight and judgment were noted to be fair. The Veteran was oriented to time, place, and person. The examiner concluded that the Veteran's disorder produced a mild impairment. The examiner assigned a GAF score of 68. A February 2007 VA examiner stated that the Veteran reported sleep problems; specifically that he had nightmares two-to- three times per week where he felt like something was happening to him and that it hurt. The Veteran reported difficulty dealing with anger, that he was irritable, and that he had episodes of road rage. The Veteran reported stress when he goes to a family function, and that he had no close friends and preferred to be alone. The Veteran was described as neatly groomed. His speech was coherent and clear, but somewhat rapid. His affect was normal, and he was oriented to time, place, and person. His thought process and content was described as unremarkable. The Veteran reported no delusions or hallucinations, and did not report suicidal or homicidal ideation. The examiner reported a GAF score of 60. A June 2008 VA examiner noted the Veteran's 1993 suicide gesture and that the Veteran had recently stopped individual psychotherapy. The Veteran reported that his medications made an improvement, but he was still having difficulty with controlling his anger. The Veteran, a security guard at a hospital, reported that he had had an incident at work where he was reprimanded for yelling at a patient. The Veteran stated that he had been married to his wife since June 2004 and that the relationship was good, although he admitted to having difficulty communicating with his wife. He reported having no close friends, and had anxiety whenever he was around groups of people, including his family. He reported feelings of detachment and an inability to have loving feelings. He also reported efforts to avoid thoughts associated with his trauma. The examiner noted that the Veteran was oriented to time, place, and person; and that his thought processes and content were unremarkable. The Veteran did not report delusions, hallucinations, suicidal or homicidal ideations. He reported sleep difficulties in that his sleep was interrupted by dreams in which he dies, but he denied having night sweats or heavy breathing. The Veteran's impulse control was described as good. The examiner reported there was no obsessive behavior, normal recent memory with mildly impaired remote memory, and a GAF score of 55. The Veteran reported that his psychological disorder caused him to have decreased concentration, inappropriate behavior, increased absenteeism from work, and low motivation. He reported having anxiety attacks when in public and around groups of people and family. He reported dreams of falling or being injured, and difficulty falling asleep. The Veteran stated that he had no close friends and kept people at a distance. The Veteran's wife is a licensed mental health therapist. She reported that the Veteran often exhibits anxiety and that before the February 2007 VA examination, the Veteran had little sleep and had nightmares. She reported that the Veteran often yells out and is restless when he does sleep. She stated that the Veteran has little appetite and that he is essentially withdrawn from his family. Other family members reported in letters dated January and February 2005 that the Veteran's personality changed after his accident. Prior to the accident, they report the Veteran was an A- student and was very motivated, almost a perfectionist. After the accident, the Veteran was not motivated, was moody, and had spells of depression. As noted above, the Veteran is currently evaluated as 50 percent disabled for his psychiatric disorder. Also as noted above, a 70 percent rating is assigned for occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); inability to establish and maintain effective relationships. 38 C.F.R. § 4.130 Diagnostic Code 9411 (2009). A review of the evidence shows that the Veteran's judgment, and thought process and content were described to be appropriate or normal. He reported no suicidal ideation, but did note a 1993 suicide gesture. There was no evidence of obsessional rituals, his speech was described to be coherent, clear, and normal, if somewhat rapid, and there is no evidence that the Veteran has near-continuous panic episodes. His impulse control was described as "good," however, the Board takes into consideration his continual reports of difficulty dealing with his anger. Other than the single episode of yelling at a patient, there is nothing in the record to indicate acts of violence. The Veteran has been oriented to time, place, and person, and there is no evidence of spatial disorientation, or neglect of personal appearance or hygiene. The Veteran does have difficulty with relationships; however, he has been married to his wife for about 6 years and the relationship seems to be a functioning one. The Board takes into consideration that the Veteran's wife is a trained mental health provider and brings into the relationship a professional understanding of the Veteran's psychiatric disability. There is no evidence that his relationships with his family are not effective; however, there is evidence that the Veteran remains detached from his family and only deals with them on his terms. Finally, the Veteran acknowledges difficulties dealing with authority figures and has stated that this makes it difficult for him to remain motivated to go to work. The Board notes that the GAF scores assigned range from the most recently provided 55 to 68 in July 2004. GAF scores ranging from 61 to 70 reflect some mild symptoms and scores ranging from 51 to 60 reflect more moderate symptoms. Those scores appear to be compatible with a 50 percent disability rating. The Board acknowledges that not all of the criteria for a 70 percent disability rating need be met. See Mauerhan v. Principi, 16 Vet. App. 436 (2002) (noting that the specified factors for each incremental rating were examples rather than requirements for a particular rating; analysis should not be limited solely to whether the claimant exhibited the symptoms listed in the rating scheme). But, after review of all the evidence of record, the Board determines that the Veteran's symptoms are best described by the currently assigned 50 percent disability rating criteria. While there is evidence of occasional anxiety, there is a lack of evidence of impairment caused by near-continuous panic. Moreover, the Veteran's normal appearance and hygiene, judgment and speech, lack of suicidal ideation, and his relatively good impulse control are more congruent with the 50 percent criteria. The Board has also considered whether a 100 percent disability rating is appropriate. However, there is no evidence of gross impairment in thought processes or communication, persistent delusions or hallucinations, or grossly inappropriate behavior. The Veteran has not been considered to be a persistent danger to himself or to others, and there is no evidence of his intermittent inability to perform activities of daily living. Finally, there is no evidence of disorientation to time or place; or memory loss for names of close relatives, his own occupation, or his own name. For those reasons, the Board finds that a 100 percent disability rating is not supported by the evidence. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2009). Fenderson consideration The Court has held that an appeal from an initial rating is a separate and distinct claim from a claim for an increased rating. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found, a practice known as "staged ratings." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board has considered the application of staged ratings to the Veteran's claims for increased initial disability ratings for loss of sense of taste, headaches, and PTSD with depressive disorder. The Board notes that the Veteran has received the maximum disability rating for loss of sense of taste since the date of his claim. Thus, staged ratings can not be provided for that disability. The Board also notes that the clinical evidence shows that the Veteran's headaches have remained essentially unchanged since the Veteran's date of claim. The Board finds that staged ratings are not appropriate for the Veteran's headache disability. Finally, the Veteran's PTSD with depressive disorder disability rating has remained a 50 percent disability from the date of service connection. As discussed above, the Board finds that at no time since his service connection have the Veteran's symptoms met the criteria for a 70 percent disability rating. Thus, staged ratings are inappropriate for service-connected PTSD with depression. Hart consideration In Hart v. Mansfield, 21 Vet App. 505 (2007), the Court held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. The Court further held that the effective date assigned may be up to one year prior to the date that the application for increase was received if it is factually ascertainable that an increase in disability had occurred within that timeframe. See 38 U.S.C.A. § 5110 (West 2002). The Veteran's service-connected loss of sense of smell has been rated as 10 percent disabling since his date of service connection in 1987. As discussed above, the 10 percent disability is the maximum disability rating available under law. Thus, staged ratings are not possible for assignment. Extraschedular Rating Finally, the Veteran has not been hospitalized for his disabilities and no evidence suggests his service-connected loss of sense, loss of sense of smell, or headaches prevent him from working. In fact, the Veteran has indicated that he is able to work through his headaches. In any case, the existing schedular rating is already based upon the average impairment of earning capacity, and is intended to be considered from the point of view of the Veteran working or seeking work. A referral for consideration of an extraschedular rating is not warranted. 38 C.F.R. § 3.321 (b)(1) (2009). ORDER Entitlement to service connection for hypertension is granted. Entitlement to an initial disability rating in excess of 10 percent for service-connected loss of sense of taste is denied. Entitlement to a disability rating in excess of 10 percent for service-connected loss of sense of smell is denied. Entitlement to an initial disability rating in excess of 10 percent for service-connected headaches is denied. Entitlement to an initial disability rating in excess of 50 percent for service-connected PTSD with depressive disorder is denied. REMAND The Board finds that referral for extraschedular consideration for service-connected PTSD with depressive disorder is warranted. See 38 C.F.R. § 3.321 (b)(1) (2009). The evidence of record shows that the Veteran's service- connected psychiatric disorder affects his ability to work. Specifically, on VA examinations in February 2007 and June 2008, the Veteran reported taking four to five weeks off a year from work due to motivation indicating that he does not feel like working. Although disturbances of motivation are contemplated in the rating criteria for PTSD with depressive disorder, the Board notes the reported loss of work due to his disability is likely significant. Therefore, on remand, his claim should be referred to the Director, Compensation and Pension Services, for consideration of an extraschedular disability. Accordingly, the case is REMANDED for the following action: Refer the Veteran's claim to the Director, Compensation and Pension Services, for consideration of an extraschedular disability rating for his service-connected PTSD with depressive disorder. The Veteran 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. 2009). ____________________________________________ LANA K. JENG Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs