Citation Nr: 21023527 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 17-46 252 DATE: April 20, 2021 ORDER Beginning August 13, 2018, entitlement to a disability rating in excess of 30 percent for service-connected psoriasis is denied. FINDING OF FACT The Veteran’s service-connected psoriasis does not affect more than 40 percent of either his total or exposed body area, and his topical treatment otherwise is not administered on a large enough scale be considered system in nature. CONCLUSION OF LAW Beginning August 13, 2018, the criteria for entitlement to a disability rating in excess of 30 percent for service-connected psoriasis are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic Code (DC) 7816. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 2005 to July 2009. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. The Board most recently discussed this claim in a May 2019 decision. There, the Board recounted this claim’s complex procedural history, which it will incorporate by reference. The most recent decision remanded the claim so that VA could obtain a new examination and because VA, during the pendency of this appeal, amended the rating criteria for the skin. A new examination was provided in November 2019. Thus, with VA substantially having complied with the Board’s prior remand directives, it now may adjudicate this claim on the merits. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Under 38 C.F.R. § 4.118, DC 7816 is assignable for psoriasis. A 60 percent disability rating is warranted for 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 immunosuppressant drugs required during the past twelve-month period. Since the inception of the Veteran’s appeal on this issue, the Board notes that there has been changes in the law concerning increased ratings for skin disorders and the applicable rating criteria. In 2016, the United States Court of Appeals for Veterans Claims (CAVC) held that, under the applicable rating criteria, compensation is available for all systemic therapies that are like or similar to corticosteroids or other immunosuppressant drugs. Warren v. McDonald, 28 Vet. App. 194, 197–99 (2016). In 2017, the United States Court of Appeals for the Federal Circuit ruled that distinguishing treatment as either topical or systemic was no longer a binary choice. A topical corticosteroid could be administered on a large enough scale to affect the body as a whole, thus meeting the definition of systemic therapy. Johnson v. Shulkin, 862 F.3d 1351, 1354–56 (2017). The Federal Circuit tied together Warren and Johnson, establishing a two-step inquiry to determine whether treatment is considered topical or systemic. First, if the medical evidence of record indicates that treatment is topical, then the Board must determine whether the treatment is of sufficient scale to affect the body as a whole. If so, then the treatment is systemic, not topical. Second, if the treatment is systemic, then the Board must determine whether the systemic treatment is like a corticosteroid or other immunosuppressant drug. Burton v. Wilkie, 30 Vet. App. 286, 294–95 (2018). To the first prong, there are various ways a topical medication could be classified as systemic. For example, a topical corticosteroid could be administered on a large enough scale, Johnson, 862 F.3d at 1354–56, or a topical application could work by circulating through bloodstream, instead of by direct contact with the skin. Burton, 30 Vet. App. at 292. Answering these questions is a factual determination to be made by the Board, which, the Federal Circuit warned, still is prohibited from making its own medical judgments, possibly requiring the Board to obtain a medical opinion. Id. at 295 (citing Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991)). Effective August 13, 2018, VA, responding to the CAVC and Federal Circuit, amended the rating criteria for the skin, in part, to include a definition of “systematic therapy” as treatment administered through any route other than the skin. 83 Fed. Reg. 32,592, 32,598 (July 13, 2018). The former rating criteria, however, which did not define “systematic therapy,” are applicable to claims that were pending prior to the effective date of the new rule, when it is more favorable to a Veteran. See Burton, 30 Vet. App. at 293. In this regard, the Board notes that the Veteran’s claim was pending prior to August 13, 2018, so that the prior and amended versions of DC 7816 are applicable to this case, depending on which version is more favorable to the Veteran. The new regulations state that characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required over the past twelve-month period warrants a 60 percent rating. The only relevant evidence since August 13, 2018, is the November 2019 skin examination obtained upon remand. It confirms that the Veteran has a diagnosis of psoriasis, which exhibits frequent scaling and cracking of the skin and is treated with clobetasol cream and ketoconazole shampoo. The examiner indicates that, within the last twelve months the Veteran has been treated on a constant/near-constant basis with corticosteroids or other immunosuppressive drugs listed as the clobetasol cream, which is topical in nature. The Veteran’s psoriasis covers 20–40 percent of his total body area and less than 5 percent of his exposed body area. The percentages for exposed and total body are, under both sets of criteria, are the same. To receive compensation in excess of 30 percent, the Veteran’s psoriasis must affect more than 40 percent of either total or exposed body area. The November 2019 examination makes clear that his psoriasis does not affect more than 40 percent for either, so he is not entitled to an increase on that basis. See 38 C.F.R. § 4.118, DC 7806. The Veteran still can qualify for an increase, however, based on the type and frequency of his treatment. The new regulations define systemic therapy as treatment administered through any route other than the skin. Thus, the Veteran’s constant/near-constant topical cream application for his psoriasis does not qualify as systemic treatment under the new rating criteria. See id.; 83 Fed. Reg. at 32,598. Thus, the Veteran’s only remaining avenue to secure an increased rating is if his treatment still qualifies as “systemic” under the Burton test articulated above. The examiner indicates that the Veteran’s psoriasis covers the bilateral (1) ears (posterior lobe and auricles), (2) elbows, (3) upper arms, and (4) knees. There is xerosis with mild scaling. The evidence discloses that the Veteran’s treatment is topical, so the Board fist must assess whether it is of sufficient scale to affect the body as a whole, rendering the treatment as “systemic.” See Burton, 30 Vet. App. at 294–95. The Board does not find that the Veteran’s psoriasis requires administering his topical treatment on a large enough scale to be considered systemic. The Veteran’s psoriasis affects only 20–40 percent of his total body area (and less than 5 percent of his exposed body area), and this includes only the ears, elbows, knees, and upper arms; the Veteran’s topical cream also does not work by circulating through the bloodstream. Thus, the Board does not find that it qualifies as systemic under the appropriate test. See id. at 292. Because the Veteran’s psoriasis does not meet the necessary rating criteria under the old or current regulations, his appeal on this issue is denied. See Burton, 30 Vet. App. at 294–95; 38 C.F.R. § 4.118, DC 7816; 83 Fed. Reg. at 32,598. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, 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.