Johnson v. Shulkin

United States Court of Appeals
for the Federal Circuit
______________________
PAUL JOHNSON, JR.,
Claimant-Appellee
v.
DAVID J. SHULKIN, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellant
______________________
2016-2144
______________________
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 Law-
rence B. Hagel.
______________________
Decided: July 14, 2017
______________________
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 Di-
vision, United States Department of Justice, Washington,
DC, argued for respondent-appellant. Also represented by
2 JOHNSON v. SHULKIN
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 posttrau-
matic 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
JOHNSON v. SHULKIN 3
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; con-
stant or near-constant systemic therapy such as
corticosteroids or other immunosuppressive drugs
1 Johnson separately received a rating of total disa-
bility based on individual unemployability (TDIU) in
March 2011, and that rating is not on appeal.
4 JOHNSON v. SHULKIN
required during the past 12-month peri-
od . . . 60 [percent]
20 to 40 percent of the entire body or 20 to 40 per-
cent of exposed areas affected, or; systemic therapy
such as corticosteroids or other immunosuppres-
sive 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 du-
ration 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 12-
month period . . . 0 [percent]
38 C.F.R. § 4.118 (emphases added); J.A. 7. DC 7806 thus
provides that a skin condition requiring at least some
amount of “systemic” therapy receives a higher rating
than a condition requiring “no more than topical” therapy,
which receives a 0 percent rating. For a rating of 30
percent, for example, the veteran must show that 20–40
percent of the veteran’s entire body was affected, 20–40
percent of the veteran’s exposed areas were affected, or
that the veteran received “systemic therapy” for six weeks
or more over the past twelve months. Id.
The Board found that, while Johnson had been grant-
ed a 10 percent rating for his skin condition, he did not
meet the criteria for a 30 percent rating because “[t]he
medical evidence does not show that at least 20 percent of
[his] entire body, or 20 percent of [his] exposed areas are
affected.” J.A. 102. Although Johnson “treated his skin
JOHNSON v. SHULKIN 5
condition with constant or near-constant topical cortico-
steroids and other topical medications,” the Board found
that this use was not “systemic therapy” because he
“treats his skin condition with topical creams.” J.A. 101–
02. It also found that Johnson “has not had systemic
therapy for a total duration of six weeks or more during
any 12-month period.” J.A. 102–03.
The Veterans Court reversed, finding that the plain
meaning of DC 7806 was unambiguous and requires that
“systemic therapy, as used therein, includes the use of
corticosteroids without any limitation to such use being
oral or parenteral as opposed to topical.” J.A. 3, 7. The
Veterans Court found that DC 7806 “explicitly mentions
corticosteroids as an example of ‘systemic therapy’ and
does not further distinguish between different types of
corticosteroid application.” J.A. 7. It found that topical
and systemic treatments were not mutually exclusive and
that a topical therapy could have a systemic effect. J.A. 8.
It also rejected the Secretary’s position that the use of
“topical” corticosteroids was “no more than topical thera-
py” and found that the use of any corticosteroids qualified
as systemic therapy because topical therapy was applica-
ble only “when the veteran is not undergoing corticoster-
oid treatment.” J.A. 9–10.
In other words, the Veterans Court read the phrase
“systemic therapy such as corticosteroids” as unambigu-
ously encompassing any topical application of corticoster-
oids for treating a skin condition, in addition to a therapy
that impacts a patient’s entire body system, such as when
a drug is administered orally or parenterally. The Veter-
ans Court reasoned that the phrase “systemic therapy
such as corticosteroids” converted the meaning of “system-
ic therapy” to be any kind of therapy that uses cortico-
steroids, whether it is administered topically, orally, or
parenterally. We have jurisdiction under 38 U.S.C.
§ 7292(c).
6 JOHNSON v. SHULKIN
DISCUSSION
I.
“In reviewing a decision of the Veterans Court, this
court is vested with authority to ‘decide all relevant
questions of law, including interpreting constitutional and
statutory provisions.’” Hogan v. Peake, 544 F.3d 1295,
1297 (Fed. Cir. 2008) (quoting 38 U.S.C. § 7292(d)(1)).
“We review statutory and regulatory interpretation de
novo.” Id.
II.
The Secretary argues that the Veterans Court erred
by interpreting DC 7806’s exemplary reference to “cortico-
steroids” as a type of “systemic therapy” to mean that DC
7806 unambiguously defined all forms of administering
corticosteroids—including topical application—to be
“systemic therapy.” He contends that this finding would
allow a veteran with a skin condition affecting less than 5
percent of his body or his exposed area, otherwise entitled
to a rating of 0 percent, to increase his rating to 60 per-
cent by using a topical over-the-counter hydrocortisone
treatment constantly or near constantly.
We agree with the Secretary that the Veterans Court
incorrectly read DC 7806 as unambiguously elevating any
form of corticosteroid treatment, including any degree of
topical corticosteroid treatment, to the level of “systemic
therapy.” The structure and content of DC 7806 make
clear that it contemplates two types of therapy, “systemic
therapy” and “topical therapy,” as the operative terms of
the diagnostic code, not the exemplary reference (“such
as”) to corticosteroids. The use of “such as” in DC 7806
does not mean that all forms of treatment with “cortico-
steroids and other immunosuppressive drugs,” no matter
how narrowly localized in their impact, count as “systemic
therapy.” DC 7806 draws a clear distinction between
“systemic therapy” and “topical therapy” as the operative
JOHNSON v. SHULKIN 7
terms of the diagnostic code. The code provides that a
veteran who requires at least some form of “systemic
therapy” receives a rating of 10 percent or higher, but one
who requires “no more than topical therapy” receives a
rating of 0 percent. The Veterans Court’s analysis of DC
7806 did not take into account this last provision in the
code, which governs ratings for treatment with a “topical
therapy” as opposed to a “systemic therapy.”
Consideration of the accepted meanings of systemic,
topical, and therapy underscores our conclusion. Both
parties agree that the plain meaning of these terms can
be ascertained from Dorland’s Illustrated Medical Dic-
tionary. J.A. 4; Appellant Br. 21; Appellee Br. 25; see also
O’Bryan v. McDonald, 771 F.3d 1376, 1380 (Fed. Cir.
2014) (consulting Dorland’s in a disability case). Dor-
land’s defines systemic as “pertaining to or affecting the
body as a whole.” J.A. 4 (citing Dorland’s Illustrated
Medical Dictionary 1865 (32d ed. 2012)). It defines topi-
cal as “pertaining to a particular surface area, as a topical
antiinfective applied to a certain area of the skin and
affecting only the area to which it is applied.” J.A. 4
(citing Dorland’s at 1940). Lastly, it defines therapy as
“treatment of disease.” Appellee Br. 25 (citing Dorland’s
at 1911). Johnson does not dispute that these definitions
apply to systemic therapy and topical therapy. Appellee
Br. 25–26. Putting these definitions together, systemic
therapy means “treatment pertaining to or affecting the
body as a whole,” whereas topical therapy means “treat-
ment pertaining to a particular surface area, as a topical
antiinfective applied to a certain area of the skin and
affecting only the area to which it is applied.” Nothing in
DC 7806 displaces the accepted understandings of sys-
temic therapy and topical therapy to permit a topical
8 JOHNSON v. SHULKIN
therapy that affects “only the area to which it is applied”
to count as a systemic therapy under that code. 2
We note that the parties agree that a topical cortico-
steroid treatment could conceivably be “administered on a
large enough scale” to affect the body as a whole, which
could fit the definition of systemic therapy. Appellee Br.
16–19, 24–26, 33; Reply Br. 5–6. But the mere possibility
that the use of a topical corticosteroid could amount to
systemic therapy in some cases does not mean all applica-
tions of topical corticosteroids mean systemic therapy,
particularly if those uses of topical corticosteroids affect
only the area to which they are applied. 3 As explained
2 The Veterans Court below compared DC 7806 to
another diagnostic code, DC 6602, which is the Schedule
for Rating Disabilities—Respiratory System. J.A. 8–9; 38
C.F.R. § 4.97 (DC 6602). The Veterans Court found that
DC 6602 shows that the Secretary knew how to define
“systemic” in a more limited way to cover only oral or
parenteral (other than through the oral cavity) cortico-
steroids but did not do the same for DC 7806. J.A. 9. We
disagree. DC 6602 draws a distinction between
(1) “systemic (oral or parenteral) high dose corticoster-
oids” that affect the body as a whole, and (2) inhaled
medication that has a more localized effect in the lungs.
Appellant Br. 25–26 (citing 38 C.F.R. §§ 4.97, 4.118). DC
7806, on the other hand, distinguishes between systemic
and topical therapy based on whether that therapy affects
the body as a whole or the localized area of the skin to
which treatment is applied. Because DC 6602 covers
respiratory conditions and DC 7806 covers skin condi-
tions, we agree with the Secretary that the different
contexts of the two codes logically explains the differences
in terminology used for the conditions discussed therein.
3 The Secretary also argues that the Veterans
Court erroneously considered extra-record evidence of a
JOHNSON v. SHULKIN 9
above, we agree with the Secretary that the use of topical
corticosteroids does not automatically mean systemic
therapy because DC 7806 distinguishes between systemic
and topical therapy. 4
Johnson also argues that the Secretary’s position
mixes “drug administration with drug therapy.” Appellee
Br. 14–15, 32. Johnson agrees that the administration of
corticosteroids can be oral, parenteral, or topical, but he
contends that these types of corticosteroids are not thera-
pies, but routes of administration. This argument is not
persuasive. Although topical therapy must be adminis-
tered to the skin, DC 7806 distinguishes it from systemic
therapy based on how much of the body is affected by the
treatment, not the route of administration. Reply Br. 8.
nicotine patch as an example of a topical treatment with a
systemic effect. J.A. 8. He contends that the Veterans
Court improperly took judicial notice of the nicotine
patch, but we do not address this issue because the nico-
tine patch is immaterial to the outcome in this case. The
mere possibility that a nicotine patch could affect or
pertain to the body as a whole does not impact the out-
come here in which there is no dispute that Johnson’s
topical application of a corticosteroid had no impact on his
system as a whole.
4 The parties also raise arguments based on previ-
ous versions of DC 7806, new proposed amendments to
DC 7806, an October 2015 revision of the VA’s Adjudica-
tion Procedures Manual, and a Disability Benefits Ques-
tionnaire that the VA uses to examine veterans during
medical examinations. We do not address these argu-
ments because we find that DC 7806 is unambiguous and
draws a clear distinction between systemic therapy and
topical therapy. For the same reasons, we do not address
the parties’ arguments on whether we should defer to the
agency’s interpretation of DC 7806.
10 JOHNSON v. SHULKIN
DC 7806 does not refer to drug administration; it differen-
tiates between systemic and topical therapy, which ad-
dress how much of the body the therapy affects. Id.
Johnson also concedes that “therapy” is “the treatment of
a disease.” Appellee Br. 25. Thus, we reject this argu-
ment.
We also note that the alternative method of assigning
a rating under DC 7806, i.e., based on the amount of skin
or exposed skin affected, supports this interpretation of
systemic and topical. Both methods distinguish the
severity of a condition based on how much of the body is
affected by the treatment.
We agree with the Secretary that the use of a topical
corticosteroid could be considered either systemic therapy
or topical therapy based on the factual circumstances of
each case. Reply Br. 5–6. Johnson did not challenge the
Board’s factual findings that he treated his skin condition
with topical creams and did not receive systemic therapy,
as that term is commonly understood. J.A. 97, 101–02;
Appellee Br. 14–17, 37; see also Oral Argument at 8:35–
9:20 (counsel for the Secretary explaining that Johnson’s
only argument to the Veterans Court was that any usage
of corticosteroids is automatically systemic therapy under
DC 7806), 30:15–31:20 (counsel for Johnson declining to
argue that Johnson’s topical application could have had a
broad, systemic effect), http://www.cafc.uscourts.gov/oral-
argument-recordings?title=&field_case_number_value=
16-2144&field_date_value2%5Bvalue%5D%5Bdate%5D=.
Given that Johnson did not challenge the Board’s fac-
tual findings that his use of topical corticosteroids affected
only the area to which he applied treatment and did not
pertain to or affect his body as a whole, we credit those
findings. We reverse the holding of the Veterans Court
and remand for it to reinstate the Board’s otherwise
unchallenged factual findings.
JOHNSON v. SHULKIN 11
CONCLUSION
For the aforementioned reasons, we reverse and re-
mand for further consideration in light of this opinion.
REVERSED AND REMANDED
COSTS
No costs.