Citation Nr: 1300453 Decision Date: 01/07/13 Archive Date: 01/11/13 DOCKET NO. 09-46 862A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an initial evaluation in excess of 20 percent prior to December 22, 2009, for type II diabetes mellitus. 2. Entitlement to a total disability evaluation based on individual unemployability (TDIU) prior to April 27, 2011. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Joseph R. Keselyak, Counsel INTRODUCTION The Veteran served on active duty from June 1964 to August 1967. This matter comes to the Board of Veterans' Appeals (Board) from October 2007 and May 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. In a July 2011 rating decision the RO granted service connection for ischemic heart disease with a 100 percent evaluation effective April 27, 2011. In light of this grant, the Veteran is not seeking a TDIU after this date. See December 2011 VA Form 21-4138. In a November 2011 rating decision, the RO increased the evaluation of the Veteran's type II diabetes mellitus to 40 percent disabling, effective December 22, 2009. The Veteran does not seek an evaluation in excess of 40 percent from this date and on, but rather seeks a 40 percent (or possibly higher) evaluation prior to that date. See AB v. Brown, 6 Vet. App. 35, 38 (1993). The Veteran was provided a Travel Board hearing in March 2012. A transcript of the testimony offered at this hearing has been associated with the record. At his Board hearing, the appellant submitted and waived initial RO consideration of evidence. Accordingly, the Board may consider it in the first instance. See 38 C.F.R. § 20.1304(c) (2012). The issue of entitlement to a total disability evaluation based on individual unemployability (TDIU) prior to April 27, 2011 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 At no time prior to December 22, 2009, has the competent and probative evidence demonstrated that the Veteran's diabetes mellitus type II has manifested by regulation of activities. CONCLUSION OF LAW The criteria for a rating in excess of 20 percent for diabetes mellitus type II have not been met prior to December 22, 2009. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.321, 4.119, Diagnostic Code 7913 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. In the notice, VA will inform the claimant which information and evidence, if any, that the claimant is to provide to VA and which information and evidence, if any, that VA will attempt to obtain on behalf of the claimant. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159 (2011); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Notice should also address the rating criteria and effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In a case such as this, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). The Veteran has not alleged any prejudice; thus that burden has not been met in this case. Nevertheless, the Board notes that VA has fully complied with the notice provisions of 38 U.S.C.A. § 5103(a). In a letter dated in April 2007, the Veteran was advised of how to substantiate his claim for service connection, his and VA's respective duties in developing the claim and as to the disability rating and effective date elements of his claim. VA has obtained the Veteran's service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, obtained medical opinions as to the severity of his diabetes mellitus, and afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. The United States Court of Appeals for Veterans Claims (hereinafter "the Court") has held that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that VA examinations obtained in this case are adequate. They are predicated on a substantial review of the record and medical findings and consider the Veteran's complaints, symptoms and history. Accordingly, VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issue addressed in this decision has been met. 38 C.F.R. § 3.159(c)(4). VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. Analysis Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012). Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3. The VA schedule of ratings will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). 38 C.F.R. Section 3.321(b)(1) provides that, in exceptional circumstances, where the schedular evaluations are found to be inadequate, the veteran may be awarded a rating higher than that encompassed by the schedular criteria. According to the regulation, an extraschedular disability rating is warranted upon a finding that "the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards." Id. The evaluation of the same disability under various diagnoses is to be avoided. Disability from injuries to the muscles, nerves, and joints of an extremity may overlap to a great extent, so that special rules are included in the appropriate bodily system for their evaluation. Both the use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14. Notwithstanding the above, VA is required to provide separate evaluations for separate manifestations of the same disability which are not duplicative or overlapping. See Esteban v. Brown, 6 Vet. App. 259, 261 (1994). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In addition, an appeal from the initial assignment of a disability rating requires consideration of the entire time period involved, and contemplates "staged ratings" where warranted. See Fenderson v. West, 12 Vet. App. 119 (1999). However, "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In claims for VA benefits, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's diabetes mellitus type II is currently evaluated as 20 percent disabling under Diagnostic Code 7913. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities is rated 40 percent disabling. Diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately rated, is rated 60 percent disabling. Diabetes mellitus requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately rated, is rated 100 percent disabling. Note (1) to Diagnostic Code 7913 provides that compensable complications of diabetes are to be rated separately unless they are part of the criteria used to support a 100 percent rating (under Diagnostic Code 7913). Noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913. "Regulation of activities" has been defined as the situation where the Veteran has been prescribed or advised to avoid strenuous occupational and recreational activities. 61 Fed. Reg. 20,440, 20,446 (May 7, 1996) (defining "regulation of activities," as used by VA in Diagnostic Code 7913). Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho v. Nicholson, 21 Vet. App. 360 (2007). The Veteran seeks a 40 percent evaluation prior to December 22, 2009, for his service-connected diabetes mellitus. It is noted by the Board, that during his Board hearing, he seemed to seek an even higher evaluation prior to December 22, 2009. Nevertheless, in order to substantiate an evaluation in excess of 20 percent, medical evidence must demonstrate regulation of activities as defined by VA. In numerous personal statements the Veteran alleges, by self-report, that he had been advised to avoid strenuous and various activity by a medical professional to regulate his type II diabetes mellitus. Of record is a January 2002 letter from A.M.R., M.D. related to sever degenerative joint disease of the knees. The letter notes that the Veteran's knees had caused him several restrictions, including no longer carrying weight over 10 pounds, climbing and descending stairs or working on his knees supporting his body weight. The letter notes that he had a great difficulty doing cutting, welding, prolonged standing, climbing, kneeling, pushing, twisting or carrying heavy objects due to his knees. A private medical record dated in July 2004 documents that the Veteran had non-insulin-dependent diabetes with inadequate control recently. He was advised to lose 15 to 20 pounds and to increase his exercise to the point of tolerance due to back pain. Of record is a September 2004 neurologic consultation report. The report notes that the Veteran diabetes was being managed with oral medications. It was noted that the Veteran was then on disability retirement due to severe knee arthritis. An April 2005 private medical record documents that the Veteran was then seen for a checkup for fitness to be a volunteer firefighter. It was noted at this time that the Veteran had insulin dependent diabetes mellitus, but without history of shocks. He was apparently cleared to be a volunteer firefighter at this time. Of record is a letter from R.D.B, M.D. dated in April 2007. In this letter, Dr. B notes that the Veteran had been a patient of his for 4 years and that he had age onset diabetes. In this regard, Dr. B. related that the Veteran's diabetes had required insulin management in the past, but at the time and with diet and with loss, exercise and oral medications, his diabetes was in reasonable control. Dr. B. did not indicate in this letter that he had advised or prescribed the avoidance of strenuous occupational or recreational activities due to diabetes. In August 2007 the Veteran was afforded a VA examination in regards to the severity of his type II diabetes mellitus. The examination report notes that the condition had been stable since its onset, with insulin treatment once daily, as well as metformin and lantus, without side effects. There was no history of hospitalization or surgery associated with the diabetes, pancreatic trauma or neoplasm, episodes of hypoglycemic reactions or ketoacidosis. He had not been instructed to follow a restricted or special diet and he had not been restricted in his ability to perform strenuous activities. In terms of occupation, the examiner noted that the Veteran was working with a sled dog race and had been doing so for about 2 to 5 years. In a November 2007 statement the Veteran related that the August 2007 VA examination contained errors. He contended in this statement that he was hospitalized in December 2005 related to diabetes and placed on a special diet. He noted that he had been retired since August 2002 due to a medical condition. Along with this statement, he attached a marked-up page from the August 2007 VA examination report indicating that he disagreed with the contradictory findings of the VA examination noting no hospitalization or restricted diet due to diabetes mellitus. He also noted that he had not been employed full-time and only volunteered for a weekend festival and assisted with sled dogs. He noted that he retired medically in 2002. In a subsequent November 2007 statement, the Veteran related that his diabetes mellitus required insulin and oral medication daily, as well as a 1700 calorie diet that greatly restricted the type and amount of food he could enjoy. In regards to regulation of activity, he noted that he used a bicycle or bicycle machine daily, and walked on a slight incline for long distances. He noted that he was able to do these activities without exhausting himself and resting frequently. He also noted that he was advised to eliminate stress. In May 2008 the Veteran again received a VA examination. The examination report notes that the Veteran retired in 2002 and was noted as being pre-diabetic at that time. In 2005, the Veteran's diabetes required insulin and an apparent admission to the hospital to get his blood sugar under control. His course since onset was noted as improved. He was then treating with both insulin and oral medication with no side effects. Inter alia, the examiner noted that the Veteran was not restricted in his ability to perform strenuous activities. In a letter dated in May 2008 the Veteran related that his recent VA examination was incorrect. In particular, he noted that, in regards to regulation of activities, he was unable to lift any weight over 10 pounds. He pointed to the January 2002 letter from Dr. R. as evidence showing that he had been advised to regulate his activities. He reiterates that this letter serves to show regulation of activities in regards to diabetes mellitus. See e.g. June 2008 letter regarding "evaluation II diabetes." Of record is a November 2008 letter from Dr. B. In this letter, Dr. B. noted that the Veteran had age onset diabetes that required insulin management in the past, but then with diet and weight loss, exercise and oral medications, the Veteran's diabetes mellitus was under reasonable control. In December 2008, the Veteran was again afforded a VA examination. The examination report notes the assessment of diabetes with several secondary conditions, namely, visual impairment, hypertension/chest pain, peripheral neuropathy and erectile dysfunction. The examiner found significant effects on the Veteran's occupation noting that he "was forced to retire due to fatigue and general pain." The examiner felt that the condition prevented sports and recreation and had severe effects on exercise, moderate effects on driving and mild effects on travelling and feeding, but no effects with chores, shopping, bathing, dressing, toileting and grooming. An October 2009 VA physician note documents that the Veteran then presented to have a VA physician write a letter on his behalf to the effect that this service-connected diabetes, inter alia, contributed to his health and that it impacted his activity level. The note documents that the physician was concerned, and that they actually preferred an increase in moderate physical activity and that a controlled increase may even decrease the need for insulin and other medications. In an August 2009 letter the Veteran related that he was then taking insulin on a daily basis. He also noted that he was on a restricted diet and limited activities. He referenced and attached a VA record dated in July 2009 that he felt substantiated his claim. A review of this record, and other VA records dated around July 2009, does not disclose the medical prescription of regulation of activities. In furtherance of substantiating his claim, the Veteran submitted a December 22, 2009, letter from S.C., M.D. In this letter, Dr. C. relates that the Veteran had been a patient of theirs since November 2009. Dr. C. relates further in this letter that he was taking daily insulin and oral medication, had a restricted diet and "restricted and regulated daily activities." In this regard, Dr. C. elaborated that the Veteran's diabetes mellitus prevented him from lifting objects weighing more than 10 pounds, standing more than 2 hours, sitting more than 1 hour, climbing stairs and walking for more than 1/4 mile without resting. Dr. C. noted that the Veteran's blood sugar could "be fluctuated" if he had no such restriction in activity. Dr. C. noted further that diabetes mellitus resulted in him needing to check his blood sugar and take insulin frequently, which limited him from normal activities in "daily livings." In a December 2010 statement the Veteran related that the evidence supported a finding of regulation of activities and a minimum 40 percent evaluation. In this regard, he asserted, inter alia, that the December 2008 VA examination supported such a finding in that it indicated that diabetes mellitus prevented sports and recreation, had severe effects on exercise, moderate effects on driving and mild effects on travelling and feeding. By way of background, the Board notes the presence of a March 2011 letter from Dr. C. In this letter, Dr. C. notes, again, that he had treated the Veteran since November 2009. He also noted that "[w]ithout the avoidance of strenuous occupational and/or recreational activities, [the Veteran's] blood sugar will be fluctuated or uncontrolled." In a January 2012 letter, the Veteran asserted that he met the minimum criteria for a 40 percent evaluation, particularly daily insulin, oral medication, restricted diet and "regulated daily activities." In this regard, he related that the evidence had shown without a doubt that his daily activities had been regulated. He noted that there was nothing pertaining to "strenuous" activity in the requirements for a 20, 40 or 60 percent evaluation, but rather only in the schedular requirements for a 100 percent evaluation. He noted that his doctors wanted him to continue to exercise as he was able, this was still a regulation of daily activities. He noted that he was no longer unable to run 2 miles, but could walk 2 with the assistance of a cane and that he frequently needed to rest. He also noted that he was unable to play baseball anymore or do any aerobic exercises. He related that such exercise would cause his blood sugar to fluctuate severely. He referenced the findings of his VA examination reports and noted that he had stated at every such examination that he had restricted daily activities. He also referenced several articles that he submitted, none of which directly address his case. In a subsequent and undated statement he made similar assertions asserting that the evidence supported a finding of regulation of activities, particularly as he understood the term to mean "control, adjustment, adaptation, alteration, management, [and] supervision." In furtherance of substantiating his claim, the Veteran submitted a March 15, 2012, letter from Dr. B. In the letter Dr. B. related that they had treated the Veteran since 2003. Dr. B. noted further that the Veteran had insulin dependent diabetes and that he needed a regular exercise program involving light weight training and range of motion exercises. They also noted that a routine walking program and/or non-competitive cycling for aerobic and conditioning benefits was recommended. Dr. B related further that the Veteran was to avoid strenuous exercise or excessive work efforts that could precipitate a hypoglycemic reaction. As noted above, the Veteran testified before the Board in March 2012. He testified that in 2005 he had been hospitalized for 2 days to bring his sugar levels under control and was advised to changes his diet. He also related that Dr. B. had advised him that he was going to have to give up snowmobiling and "sports-type" stuff. He noted that he had been retired since 2002. He testified that Dr. B. had long advised him to regulate his activities. He also related that sometime in 2007 he was advised by a VA physician to regulate his activities, in addition to his diet and taking oral medication and insulin. He noted that he had never found anything in writing in this regard. He testified further that prior to his hospitalization he had been advised to reduce his exercises and work to control his blood sugars. He noted the effects that the condition had on him, particularly that he became tired quickly. He testified to a couple of hypoglycemic reactions and that Dr. B. had specifically advised him to exercise as he was able and to stop before hurting himself. He felt that this constituted regulation of activities as defined by the regulation. In order to substantiate an evaluation in excess of 20 percent the evidence must competently establish that the Veteran has been directed to regulate his activities. Regulation of activities is defined by Diagnostic Code 7913 as the "avoidance of strenuous occupational and recreational activities." Medical evidence is required to show that occupational and recreational activities have been restricted. Camacho, at 363-364. Moreover, because of the successive nature of the rating criteria, such that the evaluation for each higher disability rating includes the criteria of each lower disability rating, each of the criteria listed in the 40 percent or higher ratings must be met in order to warrant such a rating. See Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009). An evaluation in excess of 20 percent under Diagnostic Code 7913 thus requires medical evidence that occupational and recreational activities have been restricted. Camacho, 21 Vet. App. at 363-364. In reviewing the evidence, substantially outlined above, the Board has found no indication that prior to the December 22, 2009, letter, the Veteran was required to regulate his activities, i.e. that he was advised to avoid strenuous occupational and recreational activities, other than his own self reports, which the Board does not find constitute medical evidence. Camacho, supra. Along these lines, the Board acknowledges that the condition may indeed impair his activities of daily living, as well as recreational and sporting ability, as shown by repeated VA examination. Nevertheless, prior to the December 22, 2009, letter there appears no medical evidence that he was required to regulate his activities, which has been defined as the situation where a veteran has been prescribed or advised to avoid strenuous occupational and recreational activities. Fenderson, supra. The Board acknowledges the Veteran's argument that the 40 and 60 percent criteria do not particularly reference "avoidance of strenuous occupational and recreational activities" in parentheses as the 100 percent criteria do. However, the Secretary has defined regulation of activities as the situation where the Veteran has been prescribed or advised to avoid strenuous occupational and recreational activities, regardless of the language contained in the 100 percent criteria, which merely defines the term for the entire diagnostic code. Camacho, 21 Vet. App. at 363-364. With this in mind, there appears no evidence prior to the December 22, 2009, letter that the Veteran had been medically advised or prescribed regulation of activities, as defined by the Secretary, to warrant an evaluation higher than 20 percent. Medical evidence is necessary to substantiate such a finding and the Veteran's self reports do not suffice. Id. The Board also acknowledges the scholarly articles that the Veteran has submitted in furtherance of substantiating his claim. The Board notes that, with regard to medical treatise evidence, the United States Court of Appeals for Veterans Claims (Court) has held that a medical article or treatise "can provide important support when combined with an opinion of a medical professional" if the medical article or treatise evidence discusses generic relationships with a degree of certainty such that, under the facts of a specific case, there is at least "plausible causality" based upon objective facts rather than on an unsubstantiated lay medical opinion. Mattern v. West, 12 Vet. App. 222, 228 (1999); see also Sacks v. West, 11 Vet. App. 314 (1998) and Wallin v. West, 11 Vet. App. 509 (1998). In the present case, the articles pertain to the effects of diabetes in the general population. None of them relate to the Veteran's particular case. Therefore, this evidence is of no probative value. According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2012). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three- step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected hearing loss is inadequate. A comparison between the level of severity and symptomatology of the Veteran's diabetes with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board further observes that, even if the available schedular evaluation for his disability is inadequate (which it manifestly is not), the Veteran does not exhibit other related factors such as those provided by the regulation as "governing norms." The record does not show that the Veteran has required frequent hospitalizations for his diabetes, despite his report of one such hospitalization. Additionally, there is not shown to be evidence of marked interference with employment due to this disability. The Board acknowledges the Veteran's reports of tiring easily, but notes that his non-service-connected bilateral knee disabilities were the cause of his medical retirement. Furthermore, the separate 20 percent disability rating assigned prior to December 22, 2009, contemplates some industrial impairment, and there is nothing in the record which suggests that his disability markedly impact his ability to perform his job. Moreover, there is no evidence in the medical records of an exceptional or unusual clinical picture. In short, there is nothing in the record to indicate that the service-connected disability on appeal causes impairment with employment over and above that which is contemplated in the assigned schedular rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board, therefore, has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to an initial evaluation in excess of 20 percent prior to December 22, 2009, for type II diabetes mellitus is denied. REMAND In May 2008 the Veteran was afforded a VA examination. At this time, the examiner was asked to assess if it was at least as likely as not that the Veteran was unemployable to due this type II diabetes mellitus, or if it was more likely that he medically retired due to arthritis. The examiner, confusingly, in response to this question related that "was at least as likely as not (50/50 probability) aggravated by diabetes mellitus." In May 2011, the Veteran was afforded yet another VA examination. The examiner was asked to address whether the Veteran had "total disability due to unemployability due to diabetes and peripheral neuropathy." The examiner remarked that these conditions were moderately causing the Veteran to not be able to get and keep employment." However, the examiner further explained that ischemic heart disease (service-connected as of April 27, 2011, with a 100 percent evaluation) was much more disabling and was 100 percent of his inability to be employed at all. VA's duty to assist includes providing an adequate examination when such an examination is indicated. Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). Once VA provides an examination, it must be adequate or VA must notify the Veteran why one will not or cannot be provided. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). An examination is adequate if it "takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one." Barr, 21 Vet. App. at 311 (quoting Green v. Derwinski, 1 Vet. App. 121, 124 (1991)). An examination must be based upon consideration of the Veteran's prior medical history and examinations. Stefl, 21 Vet. App. at 123. Along these lines, the Board observes that being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. "While the term 'substantially gainful occupation' may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent." Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the particular Veteran is capable of performing the physical and mental acts required by employment, not whether that Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 3 61, 363 (1993). It is also the policy of the VA, however, that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). The VA opinions addressed the wrong standard. As noted above, the question is not to what extent the Veteran's service-connected conditions have impacted his ability to work, but rather whether he is unable to secure and follow a substantially gainful occupation by reason of service-connected disability/ies. Accordingly, the examinations are inadequate. 38 C.F.R. § 4.2. Accordingly, the case is REMANDED for the following action: 1. The AOJ should arrange for the Veteran to undergo a social and industrial survey to ascertain if his service-connected disabilities prior to April 27, 2011, (thus excluding ischemic heart disease from consideration) alone precluded him from securing and maintaining substantially gainful employment in light of his work history and level of education. The Veteran's claims file must be made available to the examiner and reviewed in connection with the examination. It is imperative for the social and industrial survey examiner to understand that the focus of the inquiry is not on why he is currently unemployed or why he retired from his last job, but rather it is on whether or not his service-connected disabilities alone, prior to April 27, 2011, precluded substantially gainful employment in light of his education and work history. A discussion of the complete rationale for all opinions expressed should be included in a written report. A complete rationale for any opinion expressed should be provided. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 2. After the development requested above has been completed to the extent possible, review the record and readjudicate the Veteran's claim. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case (SSOC) and given the opportunity to respond thereto before this case is returned to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters 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