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November 9, 2021

Single Judge Application; Geib, 733 F.3d at 1354 (establishing that “applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”); Board was therefore prohibited from characterizing their silence on the issue as substantive evidence against entitlement to TDIU; AZ v. Shinseki, 731 F.3d 1303, 1317 (Fed. Cir. 2013) (holding that “where a condition would not normally have been recorded, the Board may not consider the absence of [administrative record] evidence as substantive negative evidence of that condition.”); “[T]he absence of evidence on a particular question cannot be construed as negative evidence against a claimant unless there is a foundation in the record that demonstrates that such silence has a tendency to prove or disprove a relevant fact.” Delrio, 32 Vet.App. at 240 (citing Fountain v. McDonald, 27 Vet.App. 258, 272 (2015));

Filed under: Uncategorized — Tags: — veteranclaims @ 2:32 pm

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 20-0648
MICHAEL H. FRYE, APPELLANT,
V.
DENIS MCDONOUGH,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before FALVEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
FALVEY, Judge: Navy veteran Michael H. Frye appeals, through counsel, an October 1,
2019, Board of Veterans’ Appeals decision denying a total disability rating based on individual
unemployability (TDIU). The appeal is timely; the Court has jurisdiction to review the Board
decision; and single-judge disposition is appropriate. See 38 U.S.C. §§ 7252(a), 7266(a); Frankel
v. Derwinski, 1 Vet.App. 23, 25-26 (1990).
We are asked to decide whether the Board gave an adequate statement of reasons or bases
for its denial of TDIU. Because the Board treated the VA examiner’s silence on unemployability
as substantive evidence, which it may not do, we find that the Board gave an inadequate statement
of reasons or bases and will remand the matter for further proceedings.
I. FACTS
Mr. Frye served on active duty from September 1984 to March 1991. Record (R.) at 4501.
He was trained as a hospital corpsman and then as an operating room technician. Id. In May 1989,
he underwent a splenectomy.1 See R. at 4205. In May 1990, he came across an auto accident where
1 Removal of the spleen. DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1723 (33d ed. 2020).
2
he helped free three trapped Marines; he did CPR on one Marine for two hours, but the Marine
ultimately died. R. at 3473. A December 1990 medical report recommended that Mr. Frye be put
on limited duty due to bilateral knee pain. R. at 4487. In January 1991, he was recommended for
discharge for his bilateral knee pain. R. at 4496-97.
In a July 2014 VA treatment note, Mr. Frye reported intrusive, involuntary, and distressing
memories about the May 1990 auto accident. R. at 2929-30. The treating physician assessed
alcohol use and anxiety, but not post-traumatic stress disorder (PTSD). R. at 2944. In April 2016,
Mr. Frye applied for disability compensation. R. at 2701. In September 2016, a VA examiner found
that the scars from Mr. Frye’s splenectomy operation did not impact his ability to work. R. at 2846.
In October 2016, a VA examiner found that the veteran had PTSD and that it caused occupational
and social impairment due to mild or transient symptoms. R. at 2861-62. In December 2016, a VA
examiner found that Mr. Frye’s bilateral knee pain impacted his ability to do tasks such as bending,
prolonged walking, jogging, or climbing stairs. R. at 2760.
In January 2017, the regional office (RO) granted Mr. Frye service connection for left and
right knee disabilities, each rated as 10% disabling. R. at 2700-01. In February 2017, a decision
review officer (DRO) granted service connection for PTSD with a 50% rating and for
postoperative scarring, rated at 10% for surface area and 10% for pain inclusive of functional
limitations. R. at 2673.
A May 2017 VA treatment record showed that Mr. Frye suffered a work-related neck and
upper back injury in April 2017. R. at 1163-64.
In July 2017, Mr. Frye applied for TDIU. R. at 2635-37. He stated that he worked as a
medical supply technician at a VA hospital from November 2013 to July 2017. R. at 2635, 2637.
He reported that his service-connected disabilities—PTSD and the splenectomy postoperative
scarring—had affected his employment since December 2015 and that as a result he had lost a
significant amount of work time. Id. He marked a box indicating that he had left his job but that
he did not do so because of his disabilities. R. at 2635.
In October 2017, VA examiners found that Mr. Frye’s splenectomy and its scars did not
impact his ability to work. R. at 2096, 2159-60. That same month, a VA examiner determined that
Mr. Frye had social and occupational impairment with reduced reliability and productivity due to
his PTSD, though he was also impacted by chronic pain. R. at 2140. The examiner noted that Mr.
Frye’s disability caused him to leave work early or to miss it entirely due to increased pain,
3
depression, and anxiety. Id. Mr. Frye had been written up for missing work and had problems with
concentration, memory, and chronic fatigue. R. at 2145.
Also in October 2017, the RO increased his PTSD rating from 50% to 70% and continued
the two 10% ratings for postoperative splenectomy surgical scarring R. at 1676. The RO denied
TDIU because it found that he was currently employed. R. at 1679. In December 2017, Mr. Frye
filed his Notice of Disagreement (NOD), saying that he had not worked since May 2017. R. at
1634-46.
In March 2018, a VA examiner found that Mr. Frye experienced migraine headaches that
impacted his ability to work, as the intermittent headaches caused poor concentration and
difficulties finishing tasks. R. at 1474. In June 2018, a VA examiner determined that his bilateral
knee disabilities impacted his ability to work due to difficulty with prolonged standing, sitting, or
walking. R. at 1031. In August 2018, a VA examiner noted that, because of his bilateral knee
disabilities, he had trouble standing for more than two hours, kneeling and squatting, and sitting
in a car for longer than one hour. R. at 909. Also in August 2018, a VA examiner noted that Mr.
Frye needed to stay in a darkened room when he experienced migraine headaches and that he was
likely unable to perform manual-labor-intensive employment during those headaches R. at 923.
In February 2018, the RO issued its Statement of the Case (SOC), which continued denial
of TDIU, finding that the primary reason he stopped working in May 2017 was due to his workrelated
injury and not due to his service-connected disabilities. R. at 222. In April 2018, he
appealed to the Board. R. at 170-72.
In October 2019, the Board denied TDIU. R. at 5. The Board found that, although the VA
examiners stated that his PTSD impacted his work performance, none had found that Mr. Frye’s
disability rendered him unemployable. R. at 9. The same was true of the VA examiners who opined
on his bilateral knee disabilities and migraine headaches. Id. The Board found no indication that
he could not engage in employment that did not involve prolonged standing, walking, or sitting
without rest. Id. The Board acknowledged that he could require accommodations, like opportunity
to rest or use leave when experiencing a severe headache or increased psychiatric symptoms, but
found that these would not be unreasonable or impossible. Id. It determined that he was not
precluded from some substantially gainful employment, such as clerical work. R. at 9-10. The
Board also found that, before his on-the-job injury, his service-connected disabilities alone did not
and would not preclude him from working as a medical technician. R. at 10. This appeal followed.
4
II. ANALYSIS
Mr. Frye argues that the Board gave an inadequate statement of reason or bases for relying
on the October 2017 VA examiner’s silence on unemployability. Appellant’s Brief (Br.) at 15-17.
He argues that this reliance is precluded by Delrio v. Wilkie, 32 Vet.App. 232 (2019),2 and that the
Board impermissibly shirked its own responsibility for the TDIU determination and placed it into
the hands of a VA examiner. Id. The Secretary argues that, because the October 2017 VA examiner
gave an opinion on the social and occupational impairment Mr. Frye suffered due to his PTSD but
did not state that he was unemployable, the VA examiner implicitly found that Mr. Frye’s condition
did not render him unemployable. Secretary’s Br. at 9-11.
As with any finding on a material issue of fact and law presented on the record, the Board
must support its determination of the appropriate rating with an adequate statement of reasons or
bases that enables the claimant to understand the precise basis for that determination and facilitates
review in this Court. 38 U.S.C. § 7104(d)(1); Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990).
When VA examiners are silent about a claimant’s unemployability, Delrio establishes that
this does not necessarily constitute substantive evidence against TDIU. 32 Vet.App. at 240-43.3 In
Delrio, the Board found that the VA examiners’ opinions weighed against an award of TDIU based
on PTSD “because the examiners’ opined only that the veteran’s PTSD interfered with employment
and did not state that his PTSD symptoms actually rendered him unable to obtain and maintain
substantially gainful employment.” Id. at 241 (internal quotation omitted). But the Board did not
“explain why it would have been reasonable to expect that the examiners would have commented
on that issue in examinations that were not expressly provided for TDIU purposes.” Id. Without
that explanation, “the examiners’ silence would not have a tendency to prove whether the veteran’s
PTSD rendered him unemployable, and the Board was therefore prohibited from characterizing
their silence on the issue as substantive evidence against entitlement to TDIU.” Id. (citing AZ v.
Shinseki, 731 F.3d 1303, 1317 (Fed. Cir. 2013) (holding that “where a condition would not
normally have been recorded, the Board may not consider the absence of [administrative record]
2 The Court notes that the relevant section of Delrio was giving guidance to the Board on remand in
accordance with Quirin v. Shinseki, 22 Vet.App. 390, 396 (2009). Delrio, 32 Vet.App. at 240.
3 “[T]he absence of evidence on a particular question cannot be construed as negative evidence against a
claimant unless there is a foundation in the record that demonstrates that such silence has a tendency to prove or
disprove a relevant fact.” Delrio, 32 Vet.App. at 240 (citing Fountain v. McDonald, 27 Vet.App. 258, 272 (2015)).
5
evidence as substantive negative evidence of that condition.”)
. The Board’s “apparent expectation”
that the examiners would opine on unemployability “evince[d] a misunderstanding of the
distinctive responsibilities of medical examiners and adjudicative personnel and demonstrate[d]
that the Board misapplied the law for determining whether the veteran’s PTSD rendered him unable
to secure and follow a substantially gainful occupation.” Id. at 243 (citing Geib v. Shinseki, 733
F.3d 1350, 1354 (Fed. Cir. 2013)). Of course, VA adjudicators may rely on expert medical
opinions in making their decisions, but the ultimate decision of whether to award TDIU rests with
the adjudicators and not the medical examiners. Id.; see also Geib, 733 F.3d at 1354 (establishing
that “applicable regulations place responsibility for the ultimate TDIU determination on the VA,
not a medical examiner”).

Here, the Board impermissibly relied on the medical examiners’ silence on unemployability
as substantive evidence against TDIU. The Board determined that, “[a]lthough VA examiners have
opined that [Mr. Frye’s] PTSD impacts on his employability with difficulties in work performance
and being less reliable as he has to leave early or miss work due to depression and/or anxiety, none
has opined that service-connected disability renders him unemployable.” 4 R. at 9 (emphasis
added); see R. at 2141 (October 2017 PTSD examination). Based on that understanding of the
October 2017 PTSD examiner’s opinion, the Board found that an award of TDIU was unwarranted.
R. at 9-10. But it is not clear that the October 2017 VA medical examiner even knew that a TDIU
claim was pending. See Delrio, 32 Vet.App. at 241 (requiring that the Board “explain why it would
have been reasonable to expect that the examiners would have commented on [unemployability]
in examinations that were not expressly provided for TDIU purposes”) (emphasis added). The
examiner’s opinion was recorded in a disability benefits questionnaire (DBQ) for PTSD; nowhere
does the DBQ or examiner’s comments show an awareness that unemployability was even at issue.
See R. at 2139-45. The Board did not explain why it would have been reasonable to expect that
the examiner would opine on unemployability. See Delrio, 32 Vet.App. at 241. Without such an
explanation, it is unclear how the Board could rely on the examiner’s silence on unemployability
as substantive evidence weighing against TDIU. See id. The Board’s failure to explain why it relied
on the examiner’s silence frustrates Mr. Frye’s ability to understand and this Court’s ability to
4 The Board refers to “examiners” in the plural, but the record shows that only the October 2017 VA examiner
opined on the effects of Mr. Frye’s PTSD. See R. at 2140-41.
6
review the Board’s decision, and so the Board’s statement of reasons or bases its inadequate. See
Gilbert, 1 Vet.App. at 56-57.
We find the Secretary’s arguments unpersuasive. The Secretary states that Mr. Frye’s
arguments are “contrary to the evidence of record” and argues that the October 2017 VA
examination was not silent on the unemployability issue. Secretary’s Br. at 9. He notes that the
October 2017 VA examiner found that Mr. Frye’s PTSD symptoms caused “occupational and
social impairment with reduced reliability and productivity.” Id. at 10; see R. at 2140.5 But the
quoted section of the PTSD DBQ does not refer to unemployability and only speaks generally to
a claimant’s level of impairment. See R. at 2140-41; Delrio, 32 Vet.App. at 241 (finding error
because “the Board did not identify a section in either examination report that specifically
addressed the veteran’s unemployability”). The Board may consider the level of impairment
described by the examiner, see Delrio, 32 Vet.App. at 243 (“Of course, medical examiners may
assist VA adjudicators in making that determination by providing detailed descriptions of the
veteran’s disabilities and any functional limitations that they cause.”), but, to construe the
examiner’s description as an opinion on employability, the Board must provide the proper
explanation for doing so, see id. at 241. Here, the Board gave no such explanation, and the
Secretary does not address Delrio or its implications. The Secretary also miscasts the Board’s
analysis; the Board did not rely on the substance of the examiner’s opinion, but on its silence on
unemployability—which, under Delrio, the Board may not do. See 32 Vet.App. at 241; R. at 9 (the
Board stating that “none [of the VA examiners] has opined that [PTSD] renders him
unemployable”). The Secretary thus misunderstands the Board’s decision and fails to respond to
Mr. Frye’s arguments, and so we find the Secretary’s arguments unpersuasive.
Because the Board provided an inadequate statement of reasons or bases, remand is
appropriate. See Tucker v. West, 11 Vet.App. 369, 374 (1998). Because Mr. Frye’s other arguments,
including his assertion that the Board improperly relied on the examiners’ silence on
unemployability in his knee and migraine examinations, see Appellant’s Br. at 16, would warrant
5 That part of the PTSD DBQ assessed occupational and social impairment and included an option for “Total
occupational and social impairment.” R. at 2140. The options for level of occupational and social impairment track
the criteria in the rating schedule for PTSD. See 38 C.F.R. § 4.130, DC 9411 (2021). But that section of the DBQ does
not specifically address unemployability, see Delrio, 32 Vet.App. at 241, and, in any event, TDIU may be awarded
even when the veteran’s assigned schedular rating is less than total, 38 C.F.R. § 4.16(a) (2021).
7
no greater remedy than a remand, we need not address his other arguments, see Mahl v. Principi,
15 Vet.App. 37, 38 (2001) (per curiam order) (“[I]f the proper remedy is a remand, there is no need
to analyze and discuss all the other claimed errors that would result in a remedy no broader than a
remand.”); see also Best v. Principi, 15 Vet.App. 18, 19 (2001). Generally, the veteran is free on
remand to submit additional evidence and argument, including those raised in his briefs, and he
has 90 days from the date of the postremand notice VA provides to do so. See Kutscherousky v.
West, 12 Vet.App. 369, 372–73 (1999) (per curiam order); see also Clark v. O’Rourke, 30 Vet.App.
92, 97 (2018). The Board must consider any such evidence or argument submitted. See Kay v.
Principi, 16 Vet.App. 529, 534 (2002); see also 38 U.S.C. § 7112 (a remand must be performed
in an expeditious manner); Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991) (“A remand is meant
to entail a critical examination of the justification for the decision.”).
III. CONCLUSION
On consideration of the above, the October 1, 2019, Board decision denying TDIU is SET
ASIDE and the matter is REMANDED for further proceedings.
DATED: July 14, 2021
Copies to:
John R. Bobka, Esq.
VA General Counsel (027)

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