Johnson: Systemic Therapy is Systemic Therapy or The Plain Meaning of a Regulation is the Plain Meaning of a Regulation

Paul Johnson v. McDonald, Opinion Number 14-2778, decided March 1, 2016 involves he interpretation of Diagnostic Code 7806, which relates to a skin condition.

DC 7806 provides a 60% rating for among other things “constant or near constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period”.  In fact, the veteran here had used topical corticosteroid cream for the past 12 months. 

The Board had denied the increased rating arguing the use of corticosteroid cream wasn’t systemic therapy.  The Secretary argued the Board was correct and that systemic therapy meant pertaining to the body as a whole whereas topical therapy pertained to a particular surface area.  The Secretary went through the lengths of actually adopting a M-21 manual provision that defined systemic therapy as not including topical corticosteroids.

The Court found “the language of DC 7806 is unambiguous: the diagnostic code explicitly mentions corticosteroids as an example of ‘systemic therapy’ and does not further distinguish between different types of corticosteroid application.  Otherwise stated, as used in DC 7806, ‘constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs required during the past 12-month period,’ defines systemic therapy as the use of corticosteroids without any limitation of type of use, and it is well-settled that the Board is not permitted to add criteria not included in the rating schedule.”  Id. at *6. 

The Court dealt with the Secretary’s medical definitions by stating they did not forestall the Secretary from defining systemic therapy for a skin condition as including use of topical corticosteroids, which is what they did.  And, as to the adopted manual provisions and reference to DC 6602 for support, the Court noted DC 6602 showed the Secretary knew how to narrowly define “systemic” when it wanted to.  As to the new manual provision, the Court noted that such a modification should not be applied retrospectively and could not be used to modify the plain meaning of the regulation, which can only be done after notice and comment.  Id. at *8.

 

Judge Kasold wrote a dissent agreeing systemic therapy does not exclude the use of topical corticosteroids, but stating the Board never found the use of the cream was “required” and so the case should be remanded for that determination.

This case is an excellent demonstrating of the plain meaning of a regulation winning out over the VA’s interpretation of it.  It also shows what lengths the VA will go to buttress their interpretation (adopting a manual provision while the case was pending).  It is also helpful in that the Court has made clear that adopting a manual provision will not apply retroactively and cannot change the plain language of a regulation—these should be established law, but sometimes the VA needs a reminder.

Decided by Judge Hagel and Greenberg.  Dissent by Judge Kasold.