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Johnson v. Shulkin

United States Court of Appeals, Federal Circuit

July 14, 2017

PAUL JOHNSON, JR., Claimant-Appellee
v.
DAVID J. SHULKIN, SECRETARY OF VETERANS AFFAIRS, Respondent-Appellant

         Appeal from the United States Court of Appeals for Veterans Claims in No. 14-2778, Judge William Green-berg, Senior Judge Bruce E. Kasold, Senior Judge Lawrence B. Hagel.

          Doris Hines, Finnegan, Henderson, Farabow, Garrett & Dunner, LLP, Washington, DC, argued for claimant-appellee. Also represented by Lauren J. Dreyer; Benjamin Schlesinger, Atlanta, GA; Patrick Aaron Berkshire, Barton F. Stichman, National Veterans Legal Services Program, Washington, DC.

          Emma Bond, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellant. Also represented by Benjamin C. Mizer, Robert E. Kirschman, Jr., Scott D. Austin; Jonathan Krisch, Brian D. Griffin, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

          Before Dyk, Bryson, and Chen, Circuit Judges.

          CHEN, CIRCUIT JUDGE.

         The Secretary of Veterans Affairs (Secretary) appeals a decision of the Court of Appeals for Veterans Claims (Veterans Court) holding that Diagnostic Code 7806 under 38 C.F.R. § 4.118 (DC 7806), a diagnostic code for rating disabilities for a skin condition, unambiguously defines a topical corticosteroid treatment as "systemic therapy" rather than "topical therapy." The Board of Veterans' Appeals (Board) had found that Paul Johnson, Jr.'s (Johnson) skin condition affected only a limited area of his body, and his topical corticosteroid treatment of that area did not qualify as a "systemic therapy" under DC 7806. Because we agree with the Secretary that the Veterans Court gave an overly broad reading of the term "systemic therapy" in DC 7806 that encompasses any and all forms of topical corticosteroid treatment, we reverse and remand.

         Background

         Johnson served honorably in the U.S. Army from April 6, 1970, until December 3, 1971. In early 2008, the Regional Office (RO) of the Department of Veterans Affairs (VA) granted Johnson a 30% rating for posttraumatic stress disorder (PTSD), and a 10% rating for tinea corporis, a skin condition which Johnson described as jungle rot under DC 7806, with both ratings effective on September 5, 2007. Johnson sought review before the Board, which increased his PTSD rating to 70% and remanded to the RO for further factual development on his skin condition. After several rounds of review before the Board and RO, the Board denied Johnson's request for an increased rating for tinea corporis in April 2014.[1]

         The Board noted that Johnson received several VA examinations for his skin condition in February 2008, October 2010, November 2010, and November 2013. J.A. 98-101. Although Johnson reported "scratching a lot and getting mild abrasions, " the examinations detected "no systemic manifestations due to a skin disorder, " and his skin condition "covered less than 5 percent of [his] total body area and is not on any exposed area." J.A. 101. He reported that he "treated his skin condition with constant or near-constant topical corticosteroids and other topical medications, " such as triamcinolone, miconazole, and ketoconazole creams. Id. The VA examiner concluded, however, that his skin condition "did not cause scarring or disfigurement of the head, face or neck, " it "did not impact [his] ability to work, " and "there were no other pertinent physical findings, complications, signs and/or symptoms." Id.

         The Board also recognized that Johnson could receive a rating of 30 percent for his skin condition, if he could show sufficient systemic therapy under DC 7806. J.A. 102. DC 7806 provides for four different disability ratings (60, 30, 10, and 0 percent) based on the percentage of the body or exposed area of the veteran that is affected by the skin condition or the frequency of required "systemic" or "topical" therapy. These ratings are as follows:

More than 40 percent of the entire body or more than 40 percent of exposed areas affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period . . . 60 [percent]
20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, during the past 12-month period . . . 30 [percent]
At least 5 percent, but less than 20 percent, of the entire body, or at least 5 percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period . . . 10 [percent]
Less than 5 percent of the entire body or less than 5 percent of exposed areas affected, and; no more than topical therapy required during the past ...

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