Frank E. Buczynski v. Eric K. Shinseki
2011 U.S. Vet. App. LEXIS 29
| Vet. App. | 2011Background
- Appellant Buczynski appealed an August 14, 2008 VA Board decision denying a 50% or higher rating for a service-connected dermatitis/eczema prior to August 30, 2002 and a 60% rating after that date.
- Appellant was awarded service connection for lichen simplex chronicus with hyperkeratosis of ankles/feet, rated by analogy to DC 7806; initial 10% then 30%, then 60% from August 30, 2002.
- Board concluded prior to August 30, 2002 the condition was not ulcerative or extensively exfoliative or crusting with systemic/nervous manifestations, nor exceptionally repugnant.
- Appellant abandoned the appeal as to the post-August 2002 rating, so only the period January 1994–August 2002 is on appeal.
- Court vacated the Board’s decision regarding the 1994–2002 rating and remanded for adequate reasons-and-bases on exceptional repugnance under DC 7806 (1995).
- Regulatory history and 1995 vs 2002 criteria discussed, with remand instruction to consider non-medical lay-based assessment of repugnance and other relevant factors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Board provided adequate reasons or bases for not finding exceptional repugnance | Buczynski argues absence of phrase in opinions is improper negative evidence. | Board relied on overall description and did not rely solely on absence of phrasing. | Remand for explicit reasons on exceptional repugnance under DC 7806 (1995). |
| Whether absence of explicit 'exceptionally repugnant' label can sustain rating denial | Silence in medical opinions cannot prove non-repugnance. | Board may determine repugnance from described symptoms and overall impact. | Board must provide adequate reasoning; not justified by silence alone; remand. |
| Whether DC 7806 (1995) was correctly interpreted as potentially limited to head, face, neck | Regulatory history does not support a head/face/neck limitation for 7806 (1995). | Uniformity with DC 7800 could imply limitation. | Court rejects head/neck limitation; remand to reassess exceptional repugnance with proper criteria. |
| Whether the Board adequately analyzed objective and subjective criteria for 50% under DC 7806 (1995) | Propriety of considering subjective repugnance and lay observer impact. | Board analyzed ulceration/exudation/crusting and repugnance together with evidence. | Remand to provide a fuller, explicit linkage between evidence and the 50% criteria. |
Key Cases Cited
- McLendon v. Nicholson, 20 Vet.App. 79 (2006) (absence of evidence cannot be treated as negative evidence)
- Forshey v. Principi, 284 F.3d 1335 (Fed. Cir. 2002) (en banc discussion of negative evidence concept)
- Hood v. Shinseki, 23 Vet.App. 295 (2009) (clear standard for reasoned analysis of rating findings)
- Stefl v. Nicholson, 21 Vet.App. 120 (2007) (medical evidence must describe symptoms so board can translate into rating)
- Moore v. Nicholson, 21 Vet.App. 211 (2007) (board may interpret medical evidence to apply rating criteria)
- Allday v. Brown, 7 Vet.App. 517 (1995) (statutory/regulatory requirement to provide reasons or bases)
- Gilbert v. Derwinski, 1 Vet.App. 49 (1990) (duty to provide reasoned analysis in Board decisions)
- Caluza v. Brown, 7 Vet.App. 498 (1995) (credibility and probative value must be addressed)
- Breedlove v. Shinseki, 24 Vet.App. 7 (2010) (statutory/regulatory interpretation considerations in rating)
- Sharp v. Shinseki, 23 Vet.App. 267 (2009) (statutory construction context for ratings)