Citation Nr: 21023910 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-46 003 DATE: April 21, 2021 REMANDED Entitlement to an increased rating in excess of 10 percent for psoriatic scalp dermatitis is remanded. Entitlement to a compensable rating for pseudofolliculitis barbae is remanded. REASONS FOR REMAND The Veteran served on active duty from August 2004 to August 2008. These matters come before the Board of Veterans’ Appeals (Board) on appeal from March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This case was remanded by the Board in August 2018 and April 2020 for additional development. As there has not been substantial compliance with the Board’s previous remand directives, another remand is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to an increased rating in excess of 10 percent for psoriatic scalp dermatitis is remanded. The Board regrets further delay; however, unfortunately, there has not been substantial compliance with the Board’s previous remand directives regarding this issue. In this regard, the April 2020 Board directed the RO to provide a medical opinion on whether the Veteran takes systemic therapy such as corticosteroids or other immunosuppressive drugs for his diagnosed psoriatic scalp dermatitis, and, if so, the total duration required over the past 12 months. Pursuant to the aforementioned remand, the Veteran was afforded a VA examination in January 2021. The examination report noted that the Veteran does not take a corticosteroid or any other immunosuppressive drug for his psoriatic scalp dermatitis, but only utilizes an anti-dandruff shampoo, as indicated by interview with the Veteran, and review of the claims file. The Board finds this opinion to be based on an inaccurate factual premise. VA treatment records from June 2014 until present reveal active medication lists which include a prescription for triamcinolone acetonide for psoriasis, administered twice a day. Triamcinolone Acetonide (triamcinolone acetonide cream) is a topical corticosteroid prescribed to relieve skin inflammation, itching, dryness, and redness. See https://www.rxlist.com/triamcinolone-cream-side-effects-drug-center.htm. Moreover, when asked whether the Veteran’s psoriatic dermatitis medication is an immunosuppressive topical corticosteroid, the examiner failed to provide any response. Recently, VA amended the criteria for rating the skin. Under the new criteria, a note preceding 38 C.F.R. § 4.118 provides that, for the purposes of this section, “systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin.” Diagnostic Code 7806 continues to apply to dermatitis or eczema, but is rated under the general rating formula for the skin. Under the general rating formula, A 30 percent rating is warranted where at least one of the following is present: Characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of 6 weeks or more, but not constantly, over the past 12-month period. A 60 percent rating is warranted for 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 12-month period. With regard to the meaning of “systemic therapy” prior to the new definition of the term in the revised criteria, the Court in Johnson v. McDonald, 27 Vet. App. 497, 505 (2016) held that use of a topical steroid constituted “systemic therapy” within the meaning of Diagnostic Code 7806. In Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit reversed this decision and determined that “constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs” under Diagnostic Code 7806 is generally not inclusive of topical corticosteroids. The Federal Circuit found that “systemic therapy” means “treatment pertaining to or affecting the body as a whole,” whereas topical therapy means “treatment pertaining to a 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.” Thus, according to the Federal Circuit, all applications of topical corticosteroids do not constitute systemic therapy. 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, and the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case. In Burton v. Wilkie, No. 16-2037, 2018 U.S. App. Vet. Claims Lexis 1314 (Sept. 28, 2018), the Court held that there are at least two other potential ways of showing that a topical corticosteroid is systemic: the method by which the treatment works and its side effects. Significantly, with regard to the effective date of the new criteria, VA indicated in the Supplementary Information to the Final Rule that its “intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied.” The Veteran’s claim in this case was pending prior to the August 13, 2018 effective date of the new criteria, and therefore the Board will consider both the old and new criteria and apply the more favorable. However, the Federal Circuit’s interpretation of the term “systemic therapy” in the old criteria applies throughout the entire period prior to the August 13, 2018 effective date of the new criteria. Rivers v. Roadway Express, 511 U.S. 298, 312-13 (1994) (“[j]udicial construction of a statute [or regulation] is an authoritative statement of what the statute [or regulation] meant before as well as after the decision of the case giving rise to that construction”); Jordan v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005) (a new interpretation of a statute retroactively affects decisions still open on direct review); Threatt v. McDonald, 28 Vet. App. 56, 63 (2016) (noting the “normal principle at this Court that judicial decisions operate retrospectively”). Accordingly, an addendum opinion is warranted to determine whether the Veteran is indeed actively, or has at any point during the pendency of this appeal, taken triamcinolone acetonide for his psoriasis, and whether this medication can be considered systematic or immunosuppressive in light of the holdings in Johnson v. Shulkin, and the Court’s more recent holding in Burton. The examiner should note that the appeal period before the Board begins in May 2013. 2. Entitlement to a compensable rating for pseudofolliculitis barbae is remanded. The rating assigned for pseudofolliculitis barbae was previously before the Board in April 2020. At that time, the Board remanded for further development; specifically, the Board required the examiner to indicate whether each medication is topical, corticosteroid, or immunosuppressive. If the medication is topical, the examiner should address whether it was administered on a large enough scale such that it affected the body as a whole and could be considered systemic therapy. The January 2021 examiner noted the Veteran’s use of topical hydrocortisone OTC to treat pseudofolliculitis barbae, but failed to opine on whether the medication was administered on a large enough scale such that it affected the body as a whole and could be considered systemic therapy such as corticosteroids or other immunosuppressive drugs. Therefore, an addendum opinion is warranted. The matters are REMANDED for the following action: 1. Obtain an opinion from an appropriate clinician regarding the Veteran’s service-connected psoriatic scalp dermatitis. The entire claims file must be provided to, and reviewed by, the examiner. If the examiner determines it to be necessary, an examination should be scheduled, and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: Opine as to whether the treatment for the Veteran’s skin condition constituted systematic therapy by: 1) affecting the body as a whole in treating his dermatitis, even if it is not applied to the entire body (for example, a topical treatment may affect the entire body if it circulates through the bloodstream); AND 2) whether the given treatment is “like or similar to” a corticosteroid or other immunosuppressive drug. In formulating this opinion, the VA examiner is specifically instructed to address the Veteran’s medical records, which indicate active prescriptions of triamcinolone acetonide. 2. Obtain an addendum opinion from an appropriate clinician regarding the Veteran’s service-connected pseudofolliculitis barbae. The entire claims file must be provided to and reviewed by the examiner. If the examiner determines it to be necessary, an examination should be scheduled, and any indicated tests, studies, or evaluations should be performed. The examiner is asked to: Address whether the medications used to control the Veteran’s pseudofolliculitis barbae throughout the appeal period constitute systematic therapy like a corticosteroid or other immunosuppressive drug. For topical treatments, the examiner must state (a) whether the treatment operates by affecting the body as a whole to treat pseudofolliculitis barbae and (b) whether the treatment is like a corticosteroid or other immunosuppressive drug. If the treatment is clearly systemic, the examiner must only address whether the treatment is like a corticosteroid or other immunosuppressive drug. Any opinion expressed by the examiner should be accompanied by a complete rationale. If medical literature is relied upon in rendering a determination, the examiner should identify and specifically cite each reference material utilized. If the examiner is unable to offer an opinion without resort to speculation, a thorough explanation as to why an opinion cannot be rendered should be provided. 3. The AOJ must review the claims file and ensure that the foregoing development action has been completed in full. If any development is incomplete, appropriate corrective action must be implemented. If any report does not include adequate responses to the specific opinions requested, it must be returned to the providing examiner for corrective action. Cynthia M. Bruce Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Russell, Tangela 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.