Veteranclaims’s Blog

November 20, 2021

Single Judge Application; tainted process; examiner performed fact finding as to whether the veteran experienced a head injury in service, eventually concluding that no in-service head injury occurred. See Sizemore v. Principi, 18 Vet.App. 264, 275 (2004) (faulting VA examiner for “expressing an opinion on whether the appellant’s claimed in-service stressors have been substantiated, [which] is a matter for determination by the Board and not a medical matter”); cf. Colayong v. West, 12 Vet.App. 524, 534-35 (1999) (remanding the claim for a new independent medical examination because the previous examination was obtained by “tainted process”); Bielby v. Brown, 7 Vet.App. 260, 268-69 (1994) (same); see also Moore, 21 Vet.App. at 218 (contrasting the roles of medical examiners and VA adjudicators). Because the examiner made prohibited factual determinations, engaging in fact finding that is the province of VA adjudicators and the Board, the Board erred when it relied on that examination to conclude that the veteran does not have residuals of an in-service head injury, to include TBI. See id. Therefore, a new examination is necessary. See Moore, 21 Vet.App. at 218; Sizemore, 18 Vet.App. at 275;

Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 16-0103
JEFFERY J. ALEXANDER, APPELLANT,
V.
ROBERT D. SNYDER,
ACTING SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before BARTLEY, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30 (a),
this action may not be cited as precedent.
BARTLEY, Judge: Veteran Jeffery J. Alexander appeals through counsel a December 10,
2015, Board of Veterans’ Appeals (Board) decision denying service connection for residuals of a
head injury and a seizure disorder . Record (R.) at 2-28.1 Single-judge disposition is appropriate. This
appeal is timely and the Court has jurisdiction to review the Board decision pursuant to 38 U.S.C.
§§ 7252(a) and 7266(a). For the reasons that follow, the Court will set aside the December 2015
Board decision and remand the matter for further development and readjudication consistent with
this decision.
1The Board also denied service connection for hearing loss and entitlement to an initial evaluation in excess of
10% for Parkinsonian tremor of the head and neck, an initial evaluation in excess of 40% for Parkinsonian tremor of the
right upper extremity, and an initial evaluation in excess of 10% for Parkinsonian tremor of the organs of the voice and
pharynx. R. at 2-28. Because Mr. Alexander has not challenged those aspects of the Board decision, the appeal as to
those issues will be dismissed. See Pederson v. McDonald, 27 Vet.App. 276, 281-86 (2015) (en banc) (declining to
review the merits of an issue not argued on appeal and dismissing that portion of the appeal); Cacciola v. Gibson,
27 Vet.App. 45, 48 (2014) (same). The Board remanded claims for service connection for a back disorder, eye disorder,
allergies, and a bilateral knee disorder and entitlement to special monthly compensation based on the need for aid and
attendance and the existence of housebound status. R. at 21-28. Because remands are not final decisions of the Board
subject to review, the Court does not have jurisdiction to consider those matters. See Howard v. Gober, 220 F.3d 1341,
1344 (Fed. Cir. 2000); Breeden v. Principi, 17 Vet. App. 475, 478 (2004) (per curiam order); 38 C.F.R.
§ 20.1100(b)(2016).
I. FACTS
Mr. Alexander served on active duty in the U.S. Navy from November 1986 to August 1988.
See R. at 3, 937.2 An April 1987 service treatment record (STR) noted complaints of dizziness,
disorientation, and sleepwalking. R. at 533. In July 1987, the veteran reported passing out after
becoming lightheaded and was diagnosed with probable vasovagal syncopal episode. R. at 434. In
December 1987, the veteran reported hitting his head while sleepwalking. R. at 408. In February
1988, the veteran was diagnosed with mild mental retardation, which was determined to have had
its onset in childhood, and schizophrenic disorder, which had its onset during service in January 1987. R. at 475, 477; see also R. at 455; 479-89.
VA treatment records reflect that in November 1990, while being treated for back pain and
headaches, Mr. Alexander reported having problems since a July 1990 head injury he sustained at
work. R. at 2266. Additionally, in March 1991, he reported seizures and requested medication to
treat them. In June 1992, the veteran reported that he injured his head during work, when he fell from
a construction site, and subsequently underwent a computed tomography (CT) scan that was
negative. R. at 2275.
In October 2011, the veteran sought service connection for a seizure disorder and a head
injury. R. at 1081. In July 2013, a VA regional office (RO) denied his claims. R. at 938.3 Mr.
Alexander filed a timely Notice of Disagreement (NOD) with that decision and ultimately appealed
to the Board. R. at 930 (NOD), 859 (Substantive Appeal).
In April 2012, VA received a lay statement from the veteran’s sister, who stated that the
veteran had experienced seizures since release from service. R. at 1031. The veteran’s neighbor also
submitted a statement reflecting that he assists the veteran with daily activities and has seen the
veteran experience seizures. R. at 1021,1031.4
2 A copy of Form DD-214 is not contained in the record of proceedings.
3 Mr. Alexander has a total disability evaluation for service-connected schizophrenia, effective September 1989.
R. at 938.
4 The veteran’s mother also submitted a statement that the veteran has had problems with, inter alia, blurry vision
and hearing since he left service. R. at 746. The veteran’s neighbor submitted another statement; however, he discusses
tremors, which is related to a disability that is not part of the current appeal. R. at 746, 752. These statements are not
dated.
2
During a February 2014 Board hearing, the veteran testified that he fell in service while
onboard a battleship, hitting his head, R. at 2545, 2551-52, and that he has had seizures, dizziness,
disorientation, tremors, pain, and blurry vision since the head injury, R. at 2548-52. In December
2014, the Board remanded the veteran’s claims to obtain, inter alia, a VA traumatic brain injury (TBI)
examination to properly assess whether the veteran has residuals from the in-service head injury and
to discuss whether seizures began in service. R. at 361.
In April 2015, Mr. Alexander underwent the requested TBI examination. The examiner
opined that he was unable to confirm an in-service TBI due to lack of objective medical evidence.
R. at 126. He concluded that schizophrenia and mental retardation accounted for the veteran’s
cognitive deficits and that his other current complaints were due to other etiologies and were not
residuals of an in-service TBI. Id. In a separate medical opinion of the same date, the same examiner
concluded that the veteran’s seizure disorder was not incurred in or caused by the claimed in-service
head injury. R. at 143. Although noting in a medical history section that seizure onset dated back to
1981, the examiner then opined that seizure onset occurred approximately in 1991 and that in-service
dizziness and disorientation complaints were not seizure disorder manifestations. Id. The examiner
explained that such complaints were related to heat and vasovagal syncope. Id. The examiner
indicated that the etiology of Mr. Alexander’s seizures was unknown, but was thought to be
post-traumatic, and he then observed that the veteran’s head trauma was post-service. Id.
In June 2015, Mr. Alexander asserted that, because he had an in-service head injury, he is
service connected for schizophrenia, and medical evidence supports that TBI may cause psychotic
disorders such as schizophrenia, he is entitled to service connection for TBI. R. at 112. He also
asserted entitlement to service connection for seizures because seizures are a component of TBI. Id.
He attached medical articles supporting these assertions. R. at 113-17.
In December 2015, the Board issued the decision currently on appeal, denying entitlement
to service connection for residuals of a head injury and a seizure disorder because the preponderance
of the evidence was against the claims. R. at 8-12. This appeal followed.
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II. ANALYSIS
On appeal, Mr. Alexander argues that the Board erred when it determined that he is not
entitled to service connection for residuals of a head injury and a seizure disorder by (1) relying on
inadequate medical examinations; (2) finding his lay statements not credible; (3) failing to consider
relevant medical research; and (4) failing to consider the reasonably raised theory of entitlement to
service connection for a seizure disorder secondary to schizophrenia. Appellant’s Brief (Br.) at 3-7.
The Board’s service connection determination is a factual finding that the Court reviews for
clear error. 38 U.S.C. § 7261(a)(4); Rose v. West, 11 Vet.App. 169, 171 (1998). “A factual finding
‘is “clearly erroneous” when although there is evidence to support it, the reviewing court on the entire
evidence is left with the definite and firm conviction that a mistake has been committed.'” Hersey v.
Derwinski, 2 Vet.App. 91, 94 (1992) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395
(1948)). As with any material issue of fact and law presented on the record, the Board must support
its service connection determination, as well as determinations as to whether a medical examination
is required or adequate, with an adequate statement of reasons or bases that enables the claimant to
understand the precise basis for that finding and facilitates review in this Court. 38 U.S.C.
§ 7104(d)(1); Washington v. Nicholson, 19 Vet.App. 362, 366-67 (2005). To comply with this
requirement, the Board must analyze the credibility and probative value of evidence, account for
evidence it finds persuasive or unpersuasive, and provide reasons for its rejection of material
evidence favorable to the claimant. Caluza v. Brown, 7 Vet.App. 498, 506 (1995), aff’d per curiam,
78 F.3d 604 (Fed. Cir. 1996) (table).
Any medical opinion on which the Board relies must be adequate to support judicial review.
See Stefl v. Nicholson, 21 Vet.App. 120, 124 (2007) (a medical opinion “must support its conclusion
with an analysis that the Board can consider and weigh against contrary opinions”); see also Nieves-
Rodriguez v. Peake, 22 Vet.App. 295, 301 (2008) (“[A] medical examination report must contain
not only clear conclusions with supporting data, but also a reasoned medical explanation connecting
the two.”). Although “there is no reasons or bases requirement imposed on examiners,” Acevedo v.
Shinseki, 25 Vet.App. 286, 293 (2012), “an adequate medical report must rest on correct facts and
reasoned medical judgment so as to inform the Board on a medical question and facilitate the Board’s
consideration and weighing of the report against any contrary reports.” Id. “An opinion based upon
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an inaccurate factual premise has no probative value.” Reonal v. Brown, 5 Vet.App. 460, 461 (1993).
The Court reviews the Board’s determination that a medical examination is adequate for clear error.
D’Aries v. Peake, 22 Vet.App. 97, 104 (2008). Where the Board relies on an inadequate medical
examination or opinion to support its decision, remand is appropriate. Stefl, 21 Vet.App. at 124.
A. Seizure Disorder
Mr. Alexander raises several assertions of error with the Board’s conclusion that he is not
entitled to service connection for a seizure disorder. Most persuasively, he contests the adequacy of
the April 2015 VA seizure disorders examination because of internal inconsistency. He argues that
the examiner noted in the medical history portion of the report that the veteran’s seizure disorder
showed “onset in the 1980s, while in the military.” R. at 244. However, in his medical opinion the
examiner stated that the “onset of seizures was post-service, approximately 1991.” R. at 143. The
examiner did not offer an explanation as to why, after noting onset of seizures in service, he
concluded that the seizures began in 1991. Because the April 2015 VA seizure disorders examination
contains contradictory statements and the Board did not reconcile this inconsistency, it erred in
relying on that examination report to deny service connection for the seizure disorder. See Bowling v.
Principi, 15 Vet.App. 1, 12 (2001) (emphasizing the Board’s duty to return an inadequate
examination report “if further evidence or clarification of the evidence . . . is essential for a proper
appellate decision”); 38 C.F.R. § 4.2 (2016) (“[I]f [an examination report] does not contain sufficient
detail, it is incumbent upon the rating board to return the report as inadequate for evaluation
purposes.”). Therefore, the Court concludes that the Board clearly erred in its determination that the
April 2015 VA seizures disorder examination is adequate and remand is warranted to obtain
clarification or a new examination. See D’Aries, 22 Vet.App. at 104; Stegall v. West, 11 Vet.App.
268, 271 (1998).
Additionally, Mr. Alexander argues that the Board failed to consider the reasonably raised
theory that his seizure disorder may be related to service-connected schizophrenia. Appellant’s Br. at

The Secretary urges the Court to reject the veteran’s argument because this theory was not raised
below and the record affirms that the seizure disorder is not caused by service-connected
schizophrenia. Secretary’s Br. at 14-15. The Court disagrees with the Secretary.
5
It is well-established that the Board is required to consider all theories of entitlement to VA
benefits that are either raised by the claimant or reasonably raised by the record. Schroeder v. West,
212 F.3d 1265, 1271 (Fed. Cir. 2000); Robinson v. Peake, 21 Vet.App. 545, 552 (2008), aff’d sub
nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009); see also Clemons v. Shinseki,
23 Vet.App. 1, 3 (2009) (per curiam order) (noting that the Court has “jurisdiction to remand to the
Board any matters that were reasonably raised below that the Board should have decided, with regard
to a claim properly before the Court, but failed to do so”). The April 2015 VA seizure examination
report clearly raised the issue of a relationship between seizures and schizophrenia. Specifically, the
April 2015 VA examiner answered “yes” to a query as to whether the veteran ever had a psychotic
disorder, psychoneurotic disorder, or personality disorder associated with epilepsy. R. at 247. The
examiner did not offer an explanation for this response. Moreover, contrary to the Secretary’s
assertion, the record does not show the absence of a relationship between seizures and schizophrenia.
Instead, the record cited by the Secretary opines that seizures are “probably” related to trauma, R. at
2082, an indefinite assessment that would not preclude attribution of seizures to another cause.
Accordingly, the Board was required to address this theory of service connection and because it
failed to do so, remand is required. See Schroeder, 212 F.3d at 1271; Robinson, 21 Vet.App. at 552;
see also Tucker v. West, 11 Vet.App. 369, 374 (1998) (remand is appropriate “where the Board has
incorrectly applied the law, failed to provide an adequate statement of reasons or bases for its
determinations, or where the record is otherwise inadequate”).
Insofar as the veteran raises other arguments relating to the seizure disorder claim, the Court
need not address those arguments because it has determined that remand is warranted, and the Board
will necessarily render a new decision that addresses all relevant evidence, including lay statements.
However, the veteran is free to raise additional arguments directly to the Board. Kutscherousky v.
West, 12 Vet.App. 369, 372-73 (1999) (per curiam order). See Kay v. Principi, 16 Vet.App. 529, 534
(2002). “A remand is meant to entail a critical examination of the justification for the decision” by
the Board. Fletcher v. Derwinski, 1 Vet.App. 394, 397 (1991). In addition, the Board shall proceed
expeditiously, in accordance with 38 U.S.C. § 7112 (expedited treatment of remanded claims).
6
B. Residuals of a Head Injury
Mr. Alexander argues that the April 2015 VA examiner relied on the inaccurate factual
premise that there was no head trauma in service. Appellant’s Br. at 3. The Secretary contends that
the VA examiner did not rely on an inaccurate factual premise but rather formulated a medical
opinion that there was no in-service head injury and therefore no TBI, based on a review of the
evidence. The Court agrees with the veteran.
In December 2014, the Board remanded the veteran’s TBI and seizure disorder claims for VA
to obtain a TBI examination to assess whether the veteran currently experiences residuals, including
TBI, from an in-service head injury. R. at 361. Specifically, the Board directed that an examiner
consider in-service and VA treatment records and identify all residual symptoms determined related
to an in-service head injury and state whether it is at least as likely as not that any claimed
impairment, including but not limited to seizures and blurry vision, were related to an in-service head
injury. R. at 361, 365. But instead of undertaking the ordered action, the April 2015 examiner performed fact finding as to whether the veteran experienced a head injury in service, eventually concluding that no in-service head injury occurred. See Sizemore v. Principi, 18 Vet.App. 264, 275 (2004) (faulting VA examiner for “expressing an opinion on whether the appellant’s claimed
in-service stressors have been substantiated, [which] is a matter for determination by the Board and not a medical matter”); cf. Colayong v. West, 12 Vet.App. 524, 534-35 (1999) (remanding the claim for a new independent medical examination because the previous examination was obtained by
“tainted process”); Bielby v. Brown, 7 Vet.App. 260, 268-69 (1994) (same); see also Moore, 21 Vet.App. at 218 (contrasting the roles of medical examiners and VA adjudicators). Because the examiner made prohibited factual determinations, engaging in fact finding that is the province of VA
adjudicators and the Board, the Board erred when it relied on that examination to conclude that the veteran does not have residuals of an in-service head injury, to include TBI. See id. Therefore, a new
examination is necessary. See Moore, 21 Vet.App. at 218; Sizemore, 18Vet.App. at 275
.
To the extent that the veteran has raised other arguments relating to the residuals of a head
injury claim, the Court need not address those arguments because it has determined that remand is
warranted and the Board will necessarily render a new decision after the required development.
However, the veteran is free to raise additional arguments directly to the Board. See Kutscherousky,
12 Vet.App. at 372-73.
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III. CONCLUSION
Upon consideration of the foregoing, the December 10, 2015, Board decision is SET ASIDE,
and the matter is REMANDED for further development and readjudication consistent with this
decision. The balance of the appeal is DISMISSED.
DATED: January 31, 2017
Copies to:
J. Bryan Jones, III, Esq.
VA General Counsel (027)
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