Citation Nr: 21002568 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 12-24 641 DATE: January 14, 2021 REMANDED Entitlement to a compensable rating for recurrent ulcer and cellulitis of the right lower extremity is remanded. REASONS FOR REMAND The Veteran had active duty in the Marine Corps from April 1975 to September 1975. This matter is on appeal from a March 2011 rating decision. In July 2015, the Veteran testified at a videoconference before the undersigned Veterans Law Judge. A transcript of the hearing is of record. In an October 2018 decision, the Board denied entitlement to a compensable rating for recurrent ulcer and cellulitis of the right lower extremity. In March 2020, the Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court) where the Court granted a Joint Motion for Remand (Joint Motion). The Court’s March 2020 Order vacated the October 2018 Board decision and remanded matter to the Board for consideration consistent with the terms of the joint motion. The Board remanded the matter in August 2020 for additional development. Entitlement to a compensable rating for recurrent ulcer and cellulitis of the right lower extremity. In compliance with the Board’s recent August 2020 remand, the Veteran was afforded VA contract examinations in October 2020. Although the October 2020 VA contract examiner identified topical corticosteroid “Triamcinolone cream 1%” as medication used for recurrent ulcer with cellulitis, the Veteran’s VA treatment records reflect he was also prescribed topical medication (Mupirocin 2%) for treatment of his “skin rash pyoderma”. See VA treatment records dated December 2015. Thus, an addendum opinion is needed to address this other topical medication. Additionally, the Veteran’s appellate counsel argues that the veteran is “entitled to a compensable rating for his use of Mupirocin to treat his pyoderma under 38 C.F.R. § 4.118, Diagnostic Code 7806 and Diagnostic Code 7820.” See CAVC Appellant Brief at 15. Citing new definition for systemic therapy, appellate counsel argues that Veteran’s “use of Mupirocin, an antibiotic, could be considered treatment through systemic therapy.” Id. In Johnson v. Shulkin, 862 F.3d 1351, 1354 (Fed. Cir. 2017), the United States Court of Appeals for the Federal Circuit (Federal Circuit) held that the use of topical corticosteroids did not automatically equate to systemic therapy because the rating criteria under 38 C.F.R. § 4.118, Diagnostic Code 7806 distinguished between systemic and topical therapy. The Federal Circuit went on to explain that “systemic therapy means ‘treatment pertaining to or affecting the body as a whole,’ whereas topical therapy means ‘treatment pertaining to particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied.’” Id. at 1355. The Federal Circuit also held that a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole. Id. Thus, in a given case, the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances. In Burton v. Wilkie, 30 Vet. App. 286, 291 (2018), the Court of Appeals for Veterans Claims (the Court) addressed “systemic therapy” in the context of topical treatment. The Court held that the method by which the treatment works is another factual circumstance for consideration when determining whether a topical treatment can be deemed systemic therapy. Id. at 292. The Court provided the example that a topical treatment may affect the body as a whole if it circulates through the bloodstream, and would not matter where the topical treatment was applied on the body, as the entire body would be involved in treatment. Id. Additionally, the Court held that a finding of systemic therapy is not limited to the use of corticosteroids or immunosuppressive drugs. Rather, VA must determine whether any given treatment is “like” a corticosteroid or other immunosuppressive drug in that it affects the body as a whole. Id. at 295. Thus, given the guidance in Johnson and Burton, for purposes of evaluating the Veteran’s skin disability under Diagnostic Code 7806, an addendum medical opinion is needed to clarify whether the identified topical corticosteroid medications (Triamcinolone cream 1% and Mupirocin 2%) may be considered systemic therapy. Lastly, the Veteran recently submitted a statement in December 2020 describing an “outbreak” that occurred few days prior to his examination where he states “an outbreak bumps with pus occur and severe pain occur…. After the bumps with pus burst open, it turns into sores and spreads anywhere from 1/4 in to 1/2 in or more.” See Statement in Support of Claim dated December 2020. In light of the additional lay statements submitted by the Veteran in December 2020 describing the skin disability during a flare-up, it appears an addendum opinion is necessary to help estimate the total body area and exposed area affected during flare ups. The matters are REMANDED for the following action: 1. Obtain pertinent VA and non-VA treatment records dating from March 2020 or not already of record in the claims file. 2. Arrange for the examiner who conducted the October 2020 VA skin/scar examinations to provide an addendum opinion. If the examiner is not available, the request may be referred to another, equally qualified medical professional, who should independently review the electronic claims folder. The electronic claims file should be made accessible to the examiner along with any other information the medical professional deems pertinent. If the reviewer determines that additional examination of the Veteran is necessary to provide a reliable opinion, such examination should be scheduled.  The examiner is to provide an addendum on the following: a) Identify any medication used to treat the Veteran’s service-connected recurrent ulcer with cellulitis, including manifestations such as pyoderma. The examiner should specifically address whether the Veteran’s prescription medications of Triamcinolone cream 1% and Mupirocin 2% are considered topical therapy or systemic therapy? The term “systemic therapy” means treatment pertaining to or affecting the body as a whole; and “topical therapy” means “treatment pertaining to particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied.” See Johnson v. Shulkin, 862 F.3d 1351, 1354 (Fed. Cir. 2017). b) For each identified medication, if topical therapy, does it affect the body as a whole in treating skin symptoms? Or is it applied by direct contact with the skin, localized treatment of a dermatological condition? The examiner should also address whether the Veteran’s use of topical medications could be considered systemic therapy by explaining the method by which the topical treatment works. For example, a topical treatment may affect the body as a whole if it circulates through the bloodstream. See Burton v. Wilkie, 30 Vet. App. 286 (2018). c) For each identified medication, specifically address whether it is “like” a corticosteroid or other immunosuppressive drug to constitute systemic therapy in that it affects the body as a whole. d) Please estimate the percentage of the entire body and exposed areas that are affected by the skin disability during flare ups. In rendering the requested opinion, the VA examiner should consider all relevant medical and lay evidence of record, to include photographs, if any, and additional lay statements submitted by the Veteran in December 2020 describing his skin disability in its active state. See 38 C.F.R. § 4.118, Diagnostic Code 7806. 3. Upon completion of the requested development and any additional development deemed appropriate, adjudicate the claims on appeal. If the determination remains unfavorable, the Veteran and his representative should be furnished a supplemental statement of the case which addresses all relevant evidence. The Veteran and his representative should be afforded the applicable time period in which to respond. Then, return the case to the Board. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. An, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.