Citation Nr: 22015041 Decision Date: 03/16/22 Archive Date: 03/16/22 DOCKET NO. 06-34 409 DATE: March 16, 2022 REMANDED An initial evaluation higher than 10 percent for chronic dermatitis is remanded. REASONS FOR REMAND The Veteran had active service from July 1968 to July 1971. This matter is before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans affairs (VA) Regional Office (RO). Ny way of background, an October 2014 rating decision granted service connection for chronic dermatitis and awarded an initial disability rating of 10 percent disabling. Subsequently, a March 2015 rating decision granted an earlier effective date of February 25, 2004. In a June 2015 decision, the Board remanded this appeal for further development before a June 2018 Board decision denied the Veteran's claim for an initial evaluation higher than 10 percent. The Veteran appealed the June 2018 decision to the U.S. Court of Appeals for Veterans Claims (Court). In November 2019, the Court vacated the Board's June 2018 decision and remanded the case for further proceedings. Consistent with the Court's guidance, the issue was then remanded by the Board again in January 2021. While the Board regrets further delay, the Veteran's claim for an initial evaluation higher than 10 percent for chronic dermatitis must again be remanded. The Veteran's service-connected chronic dermatitis is evaluated at 10 percent disabling for the entire period on appeal under Diagnostic Code (DC) 7806. To warrant the next higher rating, i.e., a rating of 30 percent under DC 7806, the evidence would need to show the Veterans' dermatitis involves 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. 38 C.F.R. § 4.118, DC 7806. For claims filed prior to August 13, 2018, the Court held a systematic therapy is one that affects the entire body in its treatment of the condition at issue, and the Board must determine (1) whether a topical treatment affects the body as a whole in treating a veteran's skin condition; and (2) whether the given treatment is "like" a corticosteroid or other immunosuppressive drug." Burton v. Wilkie, 30 Vet. App. 286 (2018). Only the second question need be addressed if the treatment is clearly systemic. Id. In Burton v. Wilkie, the Court addressed as to what constitutes systemic therapy. First, the Court noted the "factual circumstances" discussed in Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017) would not be so limited as to restrict "systemic therapy" to situations involving large scale topical application because such would render much of DC 7806 redundant; thus, "the large scale application is merely an example of a factual circumstance that can convert topical treatment into a systemic therapy." Burton, supra. The Court continued, finding that "to qualify as a systemic therapy it is not enough that the treatment standing alone affects the entire body. Rather, it must affect the entire body in its treatment of the condition at issue" and provided the example of a topical treatment that circulates through the bloodstream. Id. at 291-292. Regarding 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 the 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 United States Court of Appeals for the Federal Circuit (Federal Circuit) reversed that decision and determined "constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs" under DC 7806 is generally not inclusive of topical corticosteroids. The Federal Circuit found "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 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. Therefore, based on the factual circumstances of each case, the use of a topical corticosteroid could be considered either systemic therapy or topical therapy. Effective August 13, 2018, VA regulations explicitly state systemic therapy is treatment administered through any route other than the skin, and topical therapy is treatment that is administered through the skin. 38 C.F.R. § 4.118 (a). Furthermore, the Board notes, the Secretary of VA has determined that "claims pending prior to [August 13, 2018] will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied." 83 Fed. Reg. at 32593. In other words, the August 13, 2018, amended skin rating criteria can be applied retroactively, if more favorable to the Veteran. See generally VAOPGCPREC 3-2000, 7-2003. A VA opinion was obtained in December 2021. A review of the opinion shows the examiner did not provide all the information requested by the January 2021 Board remand. See Stegall v. West, 11 Vet. App. 268, 271 (1998). First, the examiner did not "compile a full list of all prescription and non-prescription, internal and topical medications and/or other forms of treatment (to include lotions), that the Veteran has utilized for treatment of his chronic dermatitis since February 2004. ... [with] the name of each treatment, the dosage used, the frequency of the use, and the period of use, to include the start date and the end date (in the event the treatment ended)." Secondly, except for the hydrocortisone lotion, the December 2021 examiner did not state whether the Veteran's treatment with all the reported topical corticosteroids constituted topical or systemic therapy. See Johnson, 862 F.3d 1351. The Board notes the examiner stated the Veteran uses over-the-counter lotion to include Gold Bond lotions. Thus, a remand is needed for a VA examiner to provide an opinion as to whether any of the Veteran's topical treatments could be considered systemic therapy by affecting the body more broadly. This matter is REMANDED for the following action: 1. Ask the Veteran to identify any outstanding treatment records relevant to his claim. All identified VA records should be added to the claims file. All other properly identified records should be obtained if the necessary authorization to obtain the records is provided by the Veteran. If any records are not available, or the Veteran identifies sources of treatment but does not provide authorization to obtain records, appropriate action should be taken (see 38 C.F.R. § 3.159(c)-(e)), to include notifying the Veteran of the unavailability of the records. 2. Obtain an addendum medical opinion from the December 2021 VA examiner. If they are unavailable, then another similarly qualified examiner may respond instead. The clinician should have a background in the treatment of chronic dermatological conditions. The clinician is requested to identify their background. The entire claims folder, including a copy of this remand, must be made available for review by the examiner, and such review should be noted in the examination report. A new VA examination is only necessary if deemed so by the examiner. Based on the clinician's review of the claims file and, in addition, the Veteran's report, compile a full list of all prescriptions and non-prescriptions, internal and topical medications and/or other forms of treatment (to include lotions), the Veteran has utilized for treatment of his chronic dermatitis since February 2004. The list should reflect the name of each treatment, the dosage used, the frequency of the use, and the period of use, to include the start date and the end date (in the event the treatment ended). In the event any portion of this information is unavailable from a review of the claims file and cannot be obtained as a result of an interview of the Veteran, such should be noted in the clinician's report. Upon creating the list of prescription and non-prescription medications and treatments, the clinician is requested to provide a retrospective opinion as to whether, for the period from February 25, 2004, to August 13, 2018, the treatment for the Veteran's dermatitis, to include his use of hydrocortisone lotion and Gold Bond lotion, e.g., is appropriately characterized as topical therapy or systemic therapy in accordance with prevailing medical understanding. Because the post-August 13, 2018, definitions of "systemic" and "topical" therapy do not apply to the entire appeal period, the examiner should NOT exclusively rely on the definitions of those terms provided in the most recent amendments to 38 C.F.R. § 4.118. Instead, the examiner should indicate whether the treatment, whether ingested orally, administered to the surface of the skin, or otherwise, operates by affecting the body as a whole. For example, a topical treatment may affect the body as a whole if it circulates through the bloodstream." If no such specific circumstances are found, and in addition no "systemic" therapy process is detected, both such findings should be expressly made. It should be noted the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. The examiner must provide a comprehensive report including complete rationales for all opinions and conclusions reached. ROBERT N. SCARDUZIO Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Buck Denton 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.