Johnson v. McDonald

KASOLD, Judge,

concurring in part and dissenting in part:

I concur with the holding that the term “systemic therapy,” as used in 38 C.F.R. § 4.118 , Diagnostic Code (DC) 7806, does not by its plain meaning exclude the use of topical corticosteroids. That part of the Board decision should be reversed. However, wholly reversing the denial of benefits — i.e., awarding benefits in the first instance — is inappropriate. This is because the Board — having mistakenly believed topical corticosteroid use was not a systemic therapy within the meaning of DC 7806 — never found whether the treatment Mr. Johnson received was “required” im-munosuppressive treatment within the meaning of DC 7806. See DC 7806 (providing disability ratings when “systemic therapy such as corticosteroids or other immunosuppressive drugs [is] required” for specified periods of time) (emphasis added).

The Court should not, in the first instance, condone the use of corticosteroids on a constant or near-constant basis as “required” immunosuppressive therapy within the meaning of DC 7806 solely because a veteran chose to use corticosteroids. Doing so not only goes beyond our appellate duty to review — not find facts in the first instance — findings of the Board; in this instance it essentially renders a medical opinion that rewards behavior that may not be medically appropriate. See, e.g., Merck Manual 647 (19th ed. 2011) (Section 7, Chapter 72, Principles of Topical Dermatologic Therapy) (noting that topical corticosteroids “can cause skin atrophy, striae [streaks on skin], and ae-neiform [acne-like] eruptions when used for > 1 mo. This effect is particularly problematic on the thinner skin of the face or genitals — High-potency formulations may cause adrenal suppression when used in children, over extensive skin surfaces, or for long periods.”).

Succinctly stated, the Board’s denial of benefits should be set aside and the matter remanded for the Board to determine, in the first instance, if the use of topical corticosteroids in this case was “required” immunosuppressive therapy within the meaning of DC 7806. To do otherwise is unwarranted and unwise. See Tucker v. West, 11 Vet.App. 369, 374 (1998) (remand, and not reversal, is appropriate “where the Board has incorrectly applied the law, failed to provide an adequate statement of *506 reasons or bases for its determinations, or where the record is otherwise inadequate”); see also Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed.Cir.2013) (“[W]here the Board has performed the necessary-fact-finding and explicitly weighed the evidence, the Court of Appeals for Veterans Claims should reverse when, on the entire evidence, it is left with the definite and firm conviction that a mistake has been committed.”); see also Merck Manual at 647.