Warren: Systemic Therapy for Skin Conditions or the VA Really Can't Read its Own Regulations

Warren v. McDonald, Opinion Number 13-3161, decided May 10, 2016 involves the consideration of the phrase “systemic therapy such as corticosteroids or other immunosuppressive drugs” in relation to skin conditions.

The veteran was service connected for a skin condition and granted a 10% rating under Diagnostic Code 7806.  He argued that he deserved a higher rating because he was orally taking Lamisil for his skin condition that qualified as “systemic therapy such as corticosteroids or other immunosuppressive drugs”.

The Board denied saying “only systemic therapy such as a corticosteroid or immunosuppressive drug is contemplated by the DC 7806, and Lamisil does not qualify as either.”

The Court remanded saying “Because ‘systemic therapy’ which is the type of therapy that creates compensability, is connected to the phrase ‘corticosteroids or other immunosuppressive drugs’ by ‘such as,’ those drug types do not constitute an exhaustive list of all compensable systemic therapies, but rather serve as examples of the kind and degrees of treatments used to justify a particular disability rating.  Consequently, the types of systemic treatments that are compensable under DC 7806 are not limited to ‘corticosteroids or other immunosuppressive drugs.’  Compensation is available for all systemic therapies that are like or similar to corticosteroids or other immunosuppressive drugs.” Id. at *4-5

The Secretary also argued his interpretation was consistent with practice, an alleged fact that was debunked by the Court by referencing the M21-1MR.

The Court remanded the case because the Board did not determine whether Lamisil is a systemic therapy like or similar to a corticosteroid or other immunosuppressive drugs.  Id. at *6.

Judge Bartley concurred simply clarifying that she believes the term systemic therapy is restricted to immunosuppressive drugs of which corticosteroid drugs are one example.

This case is but one example of the VA restrictively interpreting what is otherwise a plainly written regulation.

RRDecided by Chief Judge Hagel and Judges Pietsch and Bartley.