Citation Nr: 21025212 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 17-50 734 DATE: April 27, 2021 ORDER Entitlement to service connection for hypertension, to include as due to herbicide exposure, is denied. Entitlement to a 70 percent rating, but no higher, prior to April 3, 2019, for service-connected posttraumatic stress disorder (PTSD) with anxiety disorder (psychiatric disability) is granted. Entitlement to an effective date earlier than September 28, 2015, for the grant of an increased rating for service-connected psychiatric disability is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) prior to April 3, 2019, is granted. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the hypertension began during active service, or is otherwise related to an in-service injury or disease, to include herbicide exposure. 2. Prior to April 3, 2019, the severity, frequency, and duration of the Veteran’s psychiatric disability symptoms most closely approximated occupational and social impairment, with deficiencies in most areas. 3. The preponderance of the evidence is against finding an effective date earlier than September 28, 2015 is warranted for the increased rating of the service-connected psychiatric disability. 4. Prior to April 3, 2019, the Veteran's service-connected disabilities precluded him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. 2. The criteria for a 70 percent rating, but no higher, for the service-connected psychiatric disability prior to April 3, 2019, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, Diagnostic Code 9411. 3. The criteria for an effective date earlier than September 28, 2015, for the grant of an increased rating for the service-connected psychiatric disability, have not been met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 4. The criteria for entitlement to a TDIU prior to April 3, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1965 to September 1967. The claim for service connection for hypertension was previously before the Board in March 2019 when it was remanded for further development along with a claim for service connection for erectile dysfunction. In July 2019, the Board granted a claim for service connection for tension headaches, denied claims for service connection for sleep apnea and an increased rating for service-connected hiatal hernia, and remanded the present increased rating and earlier effective date claims for the service-connected psychiatric disability, and TDIU. An October 2019 rating decision effectuated the grant of the service-connected tension headaches. While on remand, an August 2020 rating decision granted service connection for erectile dysfunction and special monthly compensation based on loss of use of a creative organ. This represents a full grant of the benefits sought for both the tension headache and erectile dysfunction claims, and these issues are no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). Additionally, while on remand, a November 2020 rating decision granted an evaluation of 100 percent for service-connected psychiatric disability, effective April 3, 2019, and a special monthly compensation based on housebound criteria being met. In January 2021, the Veteran’s representative requested an extension to submit additional evidence, which was granted. In February 2021 the representative submitted a brief which stated that he had submitted his final pieces of evidence and requested to waive any remaining time and to forward the case to the Board for a decision. As a result, in April 2021, the Board merged these two separate appeals. 1. Entitlement to service connection for hypertension, to include as due to herbicide exposure. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (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 - the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease initially diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). In addition, service connection for certain chronic diseases may be established on a presumptive basis by showing that the condition manifested to a degree of 10 percent or more within one year from the date of separation from service. 38 U.S.C. §§ 1101, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309(a); Fountain v. McDonald, 27 Vet. App. 258, 271-72 (2015). Although the disease need not be diagnosed within the presumptive period, it must be shown, by acceptable lay or medical evidence, that there were characteristic manifestations of the disease to the required degree during that time. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309(a). Additionally, for certain chronic diseases with potential onset during service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge may support the claim. 38 C.F.R. §§ 3.303(b), 3.309; Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A Veteran who served in the Republic of Vietnam during the Vietnam era is presumed to have been exposed during to an herbicide agent, unless there is affirmative evidence to the contrary. 38 C.F.R. § 3.307(a)(6)(iii). The Vietnam era is the period beginning on February 28, 1961 and ending on May 7, 1975 for veterans who served in the Republic of Vietnam, and the period beginning on February 28, 1961 and ending on May 7, 1975, in all other cases. 38 U.S.C. § 101(29)(A). Service in the Republic of Vietnam is “service in the waters offshore and service in other locations if the conditions of service involved duty or visitation in the Republic of Vietnam.” 38 C.F.R. § 3.307(a)(6)(iii). The U.S. Court of Appeals for the Federal Circuit issued an en banc decision in Procopio v. Wilkie, 913 F.3d 1371 (Fed. Cir. 2019), which held that the phrase “service in the Republic of Vietnam” includes the 12-nautical-mile territorial waters of the Republic of Vietnam and is not limited to the landmass or inland waterways of that nation, overturning its prior decision in Haas v. Peake, 525 F.3d 1168 (2008); 38 U.S.C. § 116A(d). For Veterans presumed to have been exposed to herbicides, certain enumerated diseases shall be service connected even though there is no record of such disease during service, so long as the requirements of 38 U.S.C. § 1116 and 38 C.F.R. § 3.307(a)(6)(iii) are met, and the rebuttable presumption provisions of 38 U.S.C. § 1113 and 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). On the April 2014 VA Fully Developed Claim, the Veteran filed for service connection for hypertension due to Agent Orange exposure. First, the Board finds that there is a current disability. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). December 2015 VA treatment records note that the Veteran has hypertension which is in good control and requires medication to treat it. August 2017 VA treatment records note that the Veteran’s blood pressure was 146/87, found that the hypertension is good given his age, and recommended he continue to make medication to treat it. During a December 2019 VA examination, the examiner found a diagnosis of hypertension, and stated that it was well-controlled by medication. Accordingly, the first element of service connection is met. Second, the Board finds that there was an in-service event. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). As noted above, the Veteran asserts that his hypertension is due to Agent Orange exposure. Military personnel records indicate that he was in Vietnam from December 1965 to December 1966. July 1966 service treatment records (STRs) indicate that he received a smallpox vaccination in Vietnam. Accordingly, herbicide exposure is conceded, and the second element of service connection is met. The question before the Board is therefore whether there is a so-called “nexus” between the Veteran’s hypertension and service. After having considered all of the evidence of record, the Board finds that the preponderance of the evidence weighs against a finding that the hypertension is related to active service. See Holton, 557 F.3d at 1366; 38 C.F.R. § 3.303(d). The Veteran underwent VA examination in December 2019. After performing an in-person examination and reviewing the entire claims file, the examiner opined that the Veteran’s hypertension was less likely than not related to service. As noted above, the examiner stated that hypertension was first diagnosed in approximately 2001, and that it is well controlled by medications. The examiner explained that the December 1964 entrance examination showed blood pressure readings of 140/60, that the May 1967 separation examination showed blood pressure readings of 100/60, and that the record does not show a diagnosis of hypertension and treatment until several years after release from active duty service. The examiner explained that there is not sufficient evidence to support a definitive diagnosis of hypertension during service, and that there was no manifestation within one year after discharge. Further, the examiner explained that while studies show that service exposure to herbicide agents is associated with a hypertension risk, the Veteran has multiple additional contributing factors, including age, race, long-standing elevated body mass index, hyperglycemia, and hypercholesteremia that make it less likely than not that the hypertension incurred in or was caused by in-service exposure to herbicide agents. The examiner supported his argument by citing to multiple articles from the National Institute of Health. The Board affords the December 2019 VA examination great probative weight. It reflects a full review of the Veteran’s claims file, considered the Veteran’s claims for in-service herbicide exposure, and cited to relevant medical records and medical literature. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 302-04 (2008) (noting that the central issue in determining probative value of a medical opinion is whether the examiner was informed of the relevant facts); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) (holding that a medical opinion must be supported by an analysis that the Board can consider and weigh against contrary opinions). There are no medical opinions of record in support of the Veteran’s claim. Notably, in the February 2021 Brief, the Veteran’s attorney did not advance any argument as to why service connection for hypertension is warranted. The evidence does not show that hypertension developed to a compensable degree within one year of separation from service. The Veteran first separated from service in September 1967 and was not diagnosed with hypertension until 2001, roughly 34 years after service. Therefore, service connection on a presumptive basis for chronic disease is precluded as the evidence does not show hypertension manifested to a compensable degree within one year following separation from service. Additionally, hypertension is not a disability that is presumed to be associated with herbicide agent exposure. 38 U.S.C. § 1116; 38 C.F.R. §§ 3.307(a), 3.309(e). Thus, presumptive service connection based on exposure to herbicide agents must be denied. Accordingly, service connection is denied. In reaching this decision the Board considered the doctrine of reasonable doubt. However, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a rating higher than 50 percent for PTSD prior to April 3, 2019. As an initial matter, the Board notes that as of April 3, 2019, the Veteran’s PTSD alone has been rated as 100 percent disabling. There is no available higher rating and, as a result, the Board will not address the portion of the appeal period. Instead, the Board will focus on what the evidence establishes prior to April 3, 2019. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and his residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present.38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Veteran’s service-connected psychiatric disability is rated under 38 C.F.R. § 4.130, DC 9411. Under the General Rating Formula for Mental Disorders, the Veteran’s 50 percent evaluation contemplates 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 and maintaining effective work and social relationships. A 70 percent evaluation is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, and mood, due to such symptoms as: suicidal ideations; 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 worklike setting); and the inability to establish and maintain effective relationships.  A 100 percent evaluation is warranted for a mental disorder when there is 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 of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation or own name. 38 C.F.R. § 4.130, DC 9411. When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms; the length of remissions; and the Veteran’s capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126(a). In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment, rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126 (a). Further, when evaluating the level of disability from a mental disorder, the extent of social impairment is considered, but the rating cannot be assigned solely on the basis of social impairment. 38 C.F.R. § 4.126(b).  The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or his effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  “[A] veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration.” Vazquez-Claudio v. Shinseki, 713 F.3d 112 (Fed. Cir. 2013). The symptoms shall have caused occupational and social impairment in most of the referenced areas. Vazquez-Claudio, 713 F.3d 112. When evaluating a mental disorder, the frequency, severity, and duration of psychiatric symptoms, the length of remissions, and the veteran’s capacity for adjustment during periods of remission must be considered. 38 C.F.R. § 4.126. In addition, the evaluation must be based on all the evidence of record that bears on occupational and social impairment rather than solely on the examiner’s assessment of the level of disability at the moment of the examination. 38 C.F.R. § 4.126. During the appeal period, the Veteran underwent VA examinations in November 2015 and September 2017. During the November 2015 VA examination, the examiner noted PTSD with occupational and social impairment with reduced reliability and productivity. There, the Veteran reported that he married for over 40 years with 7 children, but his spouse had passed away six years prior. He lived with his children at the time. He stated that he had not had a serious relationship since his spouse’s passing. Although he had been on dates, he stated that he did not know how to court. The Veteran also stated that he had friends and would go out to eat with them. He asserted that his medication would mellow him out to the point of not wanting to do anything, so he did not take too much. The Veteran stated that he saw people being killed in Vietnam, and that he sometimes sees that on television, which causes him to break down. He denied substance and no drug use. He endorsed difficulty sleeping and experiencing nightmares 4 to 5 times per week. The Veteran reported panic symptoms, feeling like things were closing in on him, and nervousness. He reported loving sports but did not enjoy being in crowds as he felt it would require him to keep watch and remain vigilant. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, and impaired impulse control such as unprovoked irritability with periods of violence. Regarding behavioral observations, the examiner found the Veteran to be of appropriate appearance, with an anxious mood, cooperative attitude, a congruent affect, normal speech, normal thought process with judgment intact, normal motor activity, no suicidal or homicidal ideation, but that he had become tearful throughout the evaluation, particularly when describing Vietnam. December 2015 VA treatment records indicate that the Veteran scored negative for a depression screening. During the September 2017 VA examination, the examiner noted chronic PTSD with occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran reported that chronic pain contributes to his irritability, limits sleep, and contributes to an overall level of distress, and that ringing in the ears contributes to irritability. He stated that he was dating again, although his isolative tendencies limited chances to meet others. He stated that he was also more withdrawn from his family. The Veteran reported that his anxiety had increased considerably, that he was always on the lookout, and more suspicious of others, with increased obsessional behaviors. The examiner noted symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occurred weekly or less often, near continuous panic or depression affecting the Veteran’s ability to function independently, appropriately and effectively, chronic sleep impairment, and obsessional rituals which interfered with routine activities. The examiner recorded behavioral observations that the Veteran was early, casually and appropriately dressed, with thought content and processes that were normal, completely oriented, with no psychomotor agitation, with a wide range of affect, with good judgment and insight, normal intelligence, and good eye contact. In July 2019, the Veteran submitted a statement dated September 2018 from a friend of 30 years. His friend stated that they try and go out to breakfast once a week, but crowds make the Veteran anxious, and that he do not like traffic, and is distrustful, so he does not go out too much. The friend stated that the Veteran sometimes forgets plans, struggles to concentrate during conversation, changes topics abruptly, and spaces out. He also does not sleep well, has nightmares, is always tired, and sleeps a lot during the day. He delivers the Veteran’s mail, and he used to sit on the porch to chat, but now the Veteran will not come out anymore. The friend said that the Veteran is easily frustrated by small issues and shuts down, and that he is the Veteran’s only friend. The Veteran lashes out at his neighbors except for one and does not attend any gatherings other than church. The friend said that the Veteran never talks about his children and is very selective about what information he will share. The Veteran’s personal appearance is declining, and his house is cluttered. The Veteran submitted an April 2019 private medical examination using a VA disability benefits questionnaire, which found that he had total occupational and social impairment. Based on this examination, the RO granted an evaluation of 100 percent from the date of the private examination. In October 2020, the RO obtained a VA medical opinion to reconcile the conflicting medical evidence between the November 2015 and September 2017 VA examinations, and the April 2019 private examination. The examiner stated that after interviewing the Veteran and reviewing all of the conflicting evidence, he concluded that certain examiners have underestimated the level of impairment and that the private examiner very much overestimated the level of impairment. The examiner opined that the reality lies somewhere in between, and that the Veteran has occupational and social impairment with deficiencies in most (but not all) areas. After a thorough review of the conflicting evidence of record, the Board resolves reasonable doubt in the Veteran’s favor and finds that a 70 percent rating, but no higher, for the service-connected psychiatric disability prior to April 3, 2019 is warranted. Notably, the October 2020 medical opinion found that between the 2015, 2017, and 2019 examinations, the Veteran had occupational and social impairment in deficiencies in most (but not all) areas. Although the 2019 private examination will not be part of this analysis as it is from a time period during which the Veteran already has a full grant of benefits for the psychiatric disability, the 2015 and 2017 examinations and the 2018 buddy statement contain sufficient rating criteria to support a 70 percent evaluation. Notably, at the 2015 examination, the examiner noted that the Veteran has impaired impulse control such as unprovoked irritability with periods of violence. The 2017 examination found that the Veteran had near continuous panic or depression affecting the ability to function independently, and effectively, and obsessional rituals which interfere with routine activities. While the Veteran reported going on dates, living with his daughter, and getting breakfast with friends during the 2015 examination, by the time of the 2017 examination, the Veteran had withdrawn from his family, rebuffed their attempts to meet, and the examiner noted that the Veteran was already self-isolating. The Veteran’s friend also confirmed that he is the Veteran’s only friend and while he used to go to breakfast or chat on the Veteran’s front porch, he no longer did, and that conversation with the Veteran had become difficult. Additionally, the friend stated that the Veteran largely had bad relationships with his neighbors, and lashed out at them, and that the only public gatherings the Veteran would attend was church. By the time of the 2019 examination, the Veteran had difficulty sustaining relationships, and an inability at engaging and maintaining new intimate relationships. So while the 2019 examination is not relevant for determining the severity of the disability prior to the grant of the 100 percent evaluation, it does demonstrate a rapid decline of the Veteran’s ability to maintain and engage in socialization that is difficult to delineate over the course of the appeal, including gradually isolating himself from his children and only friend. While the 2015 and 2017 examinations found that the Veteran was appropriately dressed and cooperative, the 2018 buddy statement demonstrates that the Veteran had stopped caring for his physical appearance, and that conversation even with a close friend had become extremely difficult, between his forgetfulness and inability to stay on topic. Against a grant of an evaluation of 70 percent for the period prior to April 3, 2019 are the findings that would suggest the current 50 percent evaluation is warranted. The 2015 and 2017 examinations noted that panic attacks that occur weekly or less often, that the Veteran had normal speech, and that his judgment and thought processes were intact. However, the Board finds that the October 2020 opinion holds great probative value in resolving the contradictory examinations and finds reasonable doubt in the Veteran’s favor. In so finding, the Board recognizes the list of symptoms under the rating criteria are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. 38 C.F.R. § 4.21; Mauerhan v. Principi, 16 Vet. App. 436 (2002). Accordingly, a rating of 70 percent, but no higher, for the period prior to April 3, 2019, is granted. However, at no point during the appeal period prior to April 3, 2019, did the Veteran demonstrate total occupational and social impairment. The April 3, 2019 private examination is the earliest indication that the higher rating is warranted due to total occupational and social impairment. At no time has the Veteran been found to have gross impairment in thought processes or communication, or any disorientation to time or place. As noted above, the 2015 and 2017 examiners found the Veteran’s speech to be normal, although congruent to his anxiety, that he was cooperative, and fully oriented. Although the 2018 buddy statement noted that the Veteran lashed out at neighbors, at no time prior to April 3, 2019 has the Veteran found to be a persistent danger of hurting themselves or others. Although the Veteran had isolated from family, and most social interactions with friends, the 2018 buddy statement noted that the Veteran still attended church. Further, although difficult, he was still able to maintain a friendship. In short, the record does not establish that the psychiatric disability resulted in total occupational and social impairment. Thus, the Board finds that the next higher rating of 100 percent is not warranted. 38 C.F.R. § 4.130, Diagnostic Code 9411. 3. Entitlement to an effective date earlier than September 28, 2015 for the grant of an increased rating for service-connected psychiatric disability. Generally, the effective date of an evaluation and award of compensation for an increased rating claim is the later of the date of receipt of the claim or the date entitlement arose. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). For claims or appeals filed on or after March 24, 2015, a claim for benefits must be submitted on a standardized form. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686 (Sept. 25, 2014) (eff. Mar. 24, 2015). Claims or appeals pending before VA on that date are to be decided based on the regulations as he existed prior to the amendment. Standard Claims and Appeals Forms, 79 Fed. Reg. 57,660, 57,686. Here, the Veteran submitted a formal claim for an increased rating in September 2015. Prior to March 24, 2015, a claim was “a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit.” 38 C.F.R. § 3.1(p). An informal claim is “[a]ny communication or action indicating intent to apply for one or more benefits.” 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims - formal and informal - for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). The essential elements for any claim, whether formal or informal, are: (1) an intent to apply for benefits; (2) an identification of the benefits sought; and (3) a communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009); MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed. Cir. 2006) (holding that the plain language of the regulations requires a claimant to have intent to file a claim for VA benefits). Also prior to March 24, 2015, in some cases, a report of examination or hospitalization may be accepted as an informal claim for benefits. 38 C.F.R. § 3.157(b). The date of outpatient or hospital examination or date of admission to a VA hospital will be accepted as the date of receipt of a claim when such reports relate to examination or treatment of a disability for which service-connection has previously been established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment or hospital admission. 38 C.F.R. § 3.157(b). A report of examination implies that the medical record describes the results of a specific, particular examination and reflects a worsening of the condition. Massie v. Shinseki, 25 Vet. App. 123, 133-34 (2011) (noting that a letter from a VA physician generated for a pending Social Security claim was not a report of examination). An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010) (“It is clear from the plain language of [section] 5110(b)(2) that it only permits an earlier effective date for increased disability compensation if that disability increased during the one-year period before the filing of the claim.”); Hazan v. Gober, 10 Vet. App. 511, 519 (1997) (stating that an increase for this purpose is one to the next disability level); VAOPGCPREC 12-98 (Sept. 23, 1998). Under these circumstances, the effective date of the award is the earliest date at which it was ascertainable that an increase occurred. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125, 126 (1997). The question of when an increase in disability is factually ascertainable is based on the evidence in the Veteran's claims folder. Quarles v. Derwinski, 3 Vet. App. 129, 135 (1992). Here, as noted above, the Veteran applied for the increased rating claim in September 2015, and underwent a November 2015 examination, which the RO determined warranted an increased rating in a January 2016 rating decision. A careful review of the evidence does not find any mental health treatment records in the year prior to the September 2015 formal claim that demonstrate a factually ascertainable increase in disability. The Veteran and his representative have not raised any contentions for why an earlier effective date should be granted. Accordingly, the preponderance of the evidence is against finding the Veteran is entitled to an earlier effective date for the grant of the increase rating for the service-connected psychiatric disability, and the claim is denied. 3. Entitlement to a TDIU prior to April 3, 2019. The July 2019 Board decision found that TDIU was reasonably raised by the record, as the April 2019 private examination indicated that the Veteran can no longer work due to the service-connected psychiatric disability, and is part and parcel with the increased rating claim within. See Rice v. Shinseki, 22 Vet. App. 447, 454-455 (2009). VA will grant TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). From September 28, 2015 until April 3, 2019, service connection was in effect for the following disabilities: psychiatric disability now rated at 70 percent, tension headaches rated at 50 percent, hiatal hernia with gastroesophageal reflux (GERD) rated at 10 percent, tinnitus rated at percent, and bilateral hearing loss and erectile dysfunction both with noncompensable ratings. For this time period, the Veteran’s combined disability evaluation was 90 percent. Thus, the percentage requirements for a TDIU are met. Regarding the 100 percent schedular rating for the period from April 3, 2019, in some cases, but not all, the assignment of a total schedular rating renders a TDIU claim moot. Bradley v. Peake, 22 Vet. App. 280, 294 (2008). The Veteran may receive a total (100 percent) rating based on a combination of his service-connected disabilities, or for a single service-connected disability. Special monthly compensation (SMC) may be warranted in addition to his regular compensation if the Veteran has a total disability rating for a single disability, and additional service-connected disability or disabilities rated at 60 percent or more. The total rating for the single disability for SMC purposes may be schedular, or may be based on TDIU, so long as TDIU was granted solely because of that single disability. Thus, if the Veteran’s total rating is based on a combination of his service-connected disabilities (which, by definition, would mean that his individual service-connected disabilities are each rated at less than 100 percent), then TDIU is not moot if it could be granted on a single disability thereby making the Veteran eligible for SMC. However, if he has a single disability already rated at 100 percent, entitlement to TDIU becomes moot because he has already met that portion of the requirement for SMC. Here, for the period from April 3, 2019, the Veteran has a 100 percent combined disability rating with special monthly compensation, which renders the question of a TDIU moot. Service personnel records indicate that the Veteran’s military occupational specialty (MOS) was Light Weapon Infantry. April 2004 VA treatment records indicated that prior to the military, the Veteran worked at the YMCA, a tortilla factory, and a service station. March 2007 VA treatment records indicate that following the military, the Veteran worked for over 30 years as an engineering associate with the Austin Energy and Electric Department. November 2008 records indicate that the Veteran applied for vocational rehabilitation and employment services through VA but failed to complete the evaluation. November 2015 VA treatment records note that the Veteran was retired. And finally, the Veteran submitted an August 2019 VA Application for Increased Compensation based on Unemployability, and indicated that he last worked for the City of Austin in December 2008 where he earned $52,000 per year, and that he had training in CPR, Equal Employment Opportunity Commission, asbestos, and project management. November 2015 VA records indicate that the GERD has no functional impact on the Veteran’s ability to work, although the examiner did note that the Veteran experiences daily symptoms, including stomach pain, burning in the throat, nausea, and vomiting. September 2017 VA records also indicate that the GERD has no functional impact on the ability to work, although the Veteran reported flare-ups up to three times per week with stomach pain, epigastric distress, pyrosis, and reflux, which worsens with anxiety. As noted above, the November 2015 VA mental health examination found that the Veteran had occupational and social impairment with reduced reliability and productivity. The Veteran reported that prior to retirement in 2008, he had to “fake it to make it” as he had a family to support, and that he was breaking down a lot more. Notably, the examiner noted that the Veteran experienced panic attacks weekly or less often, disturbances of mood and motivation, difficulty in establishing and maintaining effective work and social relationships, and impaired impulse control, such as unprovoked irritability with periods of violence. The September 2017 VA mental health examination found that the Veteran has occupational and social impairment with occasional decrease in work efficiency, and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily, with normal routine behavior, self-care, and conversation. The Veteran reported that his anxiety had increased considerably, that he was always on the lookout and was more suspicious of others, especially new people. The examiner noted that the Veteran had near continuous panic or depression affecting the ability to function independently, appropriately, and effectively, and obsessional rituals which interfere with routine activities. As noted above, in the September 2018 buddy statement, the Veteran’s friend of 30 years reported that the Veteran had become increasingly isolated, to the point of refusing to interact even when his friend would visit at his home, was combative with his neighbors, did not trust many people or the government, was unable to focus on simple conversations, and had begun to neglect his appearance and home. Also, of note is the October 2020 opinion that found that earlier VA examinations had underestimated the severity of the Veteran’s disability and opined that that the Veteran has occupational and social impairment with deficiencies in most (but not all) areas. The Veteran’s representative submitted a January 2021 private opinion from a vocational consultant who opined that the Veteran is unemployable. While a large part of his detailed analysis is based on the evidence of record regarding functional loss to the Veteran’s service-connected disabilities from outside the appeal period, both before the 2015 increased rating claim, and after the 2019 grant of 100 percent for the service-connected psychiatric disability, he did focus part of his analysis on the relevant evidence as presented above. The examiner opined that the Veteran is unable to perform his prior work as an engineering associate due to physical and mental limitations due to his service-connected impairments. The examiner explained that while this work is not precluded by exertion, it is eliminated by emotional limitations. The examiner stated that the Veteran is unable to tolerate stress or social interaction required by this skilled work, is unable to concentrate and complete tasks consistent with work expectations and would not be capable of attending regularly as expected by an employer. The examiner stated that this has been true since the date of filing and is supported by the lack of any earnings reported since 2008. The examiner opined that while a physician may be capable of assuming that a person can perform certain tasks, the actual implications and impacts on the occupational capabilities in a competitive workplace is not within a physicians’ area of expertise, and a vocational expert is in a unique position to opine on the impact of any stated restrictions. The Board affords this opinion great probative value. Although it discussed at great length evidence from outside the appeal period, it does reflect a thorough review of the evidence, and is supported by clear, supporting rationale. Ultimately, the question of unemployability is a legal determination. See Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009). The Board finds the service-connected psychiatric disability symptoms were of sufficient severity to prevent him from securing or following substantially gainful employment prior to April 13, 2019. Throughout the course of the appeal period, the evidence of record demonstrates that the Veteran has become increasingly isolated, distrustful, and incapable of focusing on any one task at a time. Concerning the other service-connected disabilities, the Veteran and his representative have pointed to no evidence within the appeal period to suggest why he might contribute to the Veteran’s unemployability, other than GERD. However, it is reasonable to assume that the Veteran’s GERD would impair the Veteran in that his gastrointestinal distress would cause him to lose days at work. Also, as noted above, the Veteran reported that his GERD would cause him to become more irritable. Therefore, although not directly the reason for unemployability, the Board finds that the Veteran’s GERD, in conjunction with his PTSD, would impair his ability to secure and follow substantially gainful employment.   Given the foregoing, the Board concludes the Veteran’s service-connected disabilities precluded him from securing or following substantially gainful employment prior to April 13, 2019. Therefore, the criteria for establishing entitlement to TDIU are met. MARTHA R. LUBOCH Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Rogos The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.