When is a Skin Condition Exceptionally Repugnant?

When is a Skin Condition Exceptionally Repugnant?

The case of Frank E. Buczynski v. Eric K. Shinseki, Opinion Number 08-3000, decided January 6, 2011, looks at whether the Board properly determined if a skin condition was exceptionally repugnant.

The veteran was exposed to chemicals while in the service and this irritated his skin, especially his ankles and feet. It resulted in fissures, oozing, bleeding, excoriatory marks and scaling. The condition was examined under Diagnostic Code 7806 which looks to whether the condition is exceptionally repugnant for a rating greater than 30%.

The Board denied an increase because “None of the treatment records and none of the examiners characterized the skin condition as repugnant.” Id. at *3. The Court repeated that the Board may not consider the absence of evidence as substantive negative evidence. Specifically, the said “there does not appear to be any medical reason why a doctor would be expected to comment on the repugnance of a condition. Therefore, this is not a situation where the silence in regard to a condition can be taken as proof that a doctor did not observe the symptom. In its decision, the Board stated: ‘None of the treatment records and none of the examiners characterized the skin condition as repugnant.’ A plain reading of this statement leads the Court to conclude that the Board’s only possible explanation for its determination that the appellant’s skin condition was not exceptionally repugnant was that neither the treatment records nor the medical examiners had characterized the condition in those words.” Id. at 4-5. The court hen characterized this as a reasons and bases error and stated “[w]hen words are objective and have a precise medical meaning, then an examiner may be required to use those words to provide an adequate opinion. When words are subjective and do not have a precise medical meaning, then a medical opinion is adequate when the examiner provides sufficient detail so that the rating specialist can interpret the report and make a subjective determination as to whether the condition meets the rating criteria.” Id. at *7.

Decision by Judge Moorman, Lance and Davis.