Veteranclaims’s Blog

April 6, 2011

Single Judge Application, Buczynski v. Shinseki, No. 08-3000, 2011 WL 37846, at *7 (Vet. App. Jan. 6, 2011)

Excerpt from decision below:

Despite the Board’s acknowledgment that it was not competent to reach any conclusions requiring specialized training, it did just that when it concludes that “[t]here is nothing in the photographs . . . that calls into question the conclusions reached by the medical examiner.” Id.
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“If a medical examiner was required in the first instance to draw conclusions regarding the presence of extensive lesions and disfigurement, the Board cannot draw the same conclusion on its own simply because the lesions in the photographs are visible to the naked eye. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991) (holding that the Board “may consider only independent medical evidence to support [its] findings”). Such a conclusion improperly minimizes the role of medical examiners in determining the severity of a disability.
While this Court recently found that the term “exceptional repugnance” is a “determination of how a lay observer would subjectively respond to the appellant’s disability,” determining the presence of extensive lesions and disfigurement involves defining objective degrees of a disability, which requires specialized medical training to draw proper conclusions. See Buczynski v. Shinseki, No. 08-3000, 2011 WL 37846, at *7 (Vet. App. Jan. 6, 2011).”
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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 09-1390
WILLIAM M. TURNER, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before DAVIS, Judge.

MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

DAVIS, Judge: U.S. Navy veteran William M. Turner appeals through counsel
from a February 17, 2009, Board of Veterans’ Appeals (Board) decision that denied
entitlement to an
increased rating for service-connected vesicular dyshydrosis with eczema,1
currently evaluated at
10% disabling. For the reasons stated below, the Court will set aside the
Board decision and remand
the matter for further development and readjudication consistent with this
decision.

I. ANALYSIS
Mr. Turner presents a series of arguments that challenge the Board’s
treatment of several color photographs that he submitted to VA after his most recent VA examination. The photographs show an instance of a recurrent outbreak of dyshydrotic eczema on his face.
Both the former and current DC 7800, which apply to scars and disfigurement of the face, neck, and head, allow for the Dyshydrosis, is “recurrent eczema with blistering on the palms and soles, particularly along the sides and
between the digits, accompanied by pruritus, a burning sensation, and
hyperhidrosis . . . . [A]ttacks are self-limited and usually last two to three weeks.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 585, 1517 (31st ed. 2007).
Mr. Turner had originally been awarded a 10% disability rating under 38 C.
F.R. § 4.118, Diagnostic Code (DC) 7816 (2008), which pertains to psoriasis but found that his “skin disability is more properly assigned under [DC] 7806
[dermatitis or eczema].” Record (R.) at 14. The Board found no prejudice
in this change of DC “as the rating criteria and scheduled ratings under 7806 and 7816 are exactly the same.” Id.
1

submission of unretouched photographs to evidence the condition. Compare
38 C.F.R. § 4.118, DC 7800 (2001) with 38 C.F.R. § 4.118, DC 7800 (2010).
The Board stated in its decision that [t]he Veteran’s representative argues that the Board should remand this case so a medical professional can look at these pictures to determine the severity of the Veteran’s skin disability . . . . As a general matter, the Board is not competent to reach any conclusions requiring specialized medical training . . . . The Board is competent to observe what is visible to the naked eye. See 38 C.F.R. § 3.159(a)(2)
[lay evidence is competent if it conveys matters that can be observed and
described by a lay person]; see also Barr v. Nicholson, 21 Vet.App. 303 (2007).
There is nothing in the photographs submitted by the veteran that calls into
question the conclusions reached by the medical examiners [i.e., that extensive lesions and disfigurement are not present]. R. at 18. This analysis is contradictory at best. Despite the Board’s acknowledgment that it was not competent to reach any conclusions requiring specialized training, it did just that when it concludes that “[t]here is nothing in the photographs . . . that calls into question the conclusions reached by the medical examiner.” Id. If a medical examiner was required in the first instance to draw conclusions regarding the presence of extensive lesions and disfigurement, the Board cannot draw the same
conclusion on its own simply because the lesions in the photographs are
visible to the naked eye. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991) (holding that the Board “may consider only independent medical evidence to support [its] findings”). Such a conclusion improperly minimizes the role of medical examiners in determining the severity of a disability.
While this Court recently found that the term “exceptional repugnance” is a “determination of how a lay observer would subjectively respond to the appellant’s disability,” determining the presence of extensive lesions and disfigurement involves defining objective degrees of a disability, which requires specialized medical training to draw proper conclusions. See Buczynski v. Shinseki, No. 08-3000, 2011 WL 37846, at *7 (Vet. App. Jan. 6, 2011).
Remand is therefore required for VA to provide a medical examination that
considers the photographs submitted in September 2005. Because the claim is being
remanded, the Court need not address Mr. Turner’s other related arguments. See Mahl v. Principi, 15 Vet.App. 37, 38 (2001)
2

(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.”).

II. CONCLUSION
On consideration of the foregoing, the Court SETS ASIDE the February 17,
2009, Board
decision and REMANDS the matter for VA to provide a medicalexamination. On
remand, he is free
to submit additional evidence and argument on the remanded matters, and
the Board is required to consider any such relevant evidence and argument. See Kay v. Principi, 16 Vet.App. 529, 534 (2002) (stating that, on remand, the Board must consider additional evidence and argument in assessing entitlement to benefit sought); Kutscherousky v.West,12Vet.App.369, 372-73(1999)(per
curiam order).
DATED: March 29, 2011
Copies to:
Glenn Bergmann, Esq.
VA General Counsel (027)
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