Johnson v. Shulkin
2017 U.S. App. LEXIS 12601
Fed. Cir.2017Background
- Veteran Paul Johnson received a 10% VA rating for tinea corporis (DC 7806) and sought a higher rating; Board denied increase, finding his condition affected <5% of body and was treated with topical corticosteroid creams, not systemic therapy.
- DC 7806 assigns higher ratings where a skin condition requires “systemic therapy such as corticosteroids or other immunosuppressive drugs”; a 0% rating applies when "no more than topical therapy" is required.
- The Board found Johnson’s treatment was limited to topical creams and there was no systemic therapy for six weeks or more in any 12-month period.
- The Veterans Court reversed, holding DC 7806 unambiguously treats "corticosteroids" as an example of systemic therapy and therefore any corticosteroid use, including topical, can qualify as systemic therapy.
- The Secretary appealed, arguing the Veterans Court erred by reading the illustrative phrase "such as corticosteroids" to convert all topical corticosteroid use into "systemic therapy."
- The Federal Circuit reversed the Veterans Court, holding DC 7806 distinguishes systemic (affecting the body as a whole) from topical (localized) therapy and that topical corticosteroid use is not automatically "systemic therapy." The case was remanded to reinstate the Board’s factual findings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DC 7806 unambiguously treats any corticosteroid use (including topical) as "systemic therapy" | Johnson: "systemic therapy such as corticosteroids" includes corticosteroids regardless of administration route | Secretary: "such as corticosteroids" is illustrative; systemic means therapy affecting the body as a whole, not all topical corticosteroid use | Court: Reversed Veterans Court; DC 7806 distinguishes systemic (body-wide effect) from topical (localized), so topical corticosteroids are not automatically systemic |
| Whether ordinary definitions of "systemic" and "topical" support treating topical corticosteroids as systemic | Johnson: administration-route focus — corticosteroid types define therapy | Secretary: plain-meaning medical definitions show systemic ≠ topical; context controls | Court: Adopted medical dictionary definitions; DC 7806’s structure supports the Secretary |
| Whether a topical corticosteroid could ever be "systemic therapy" under DC 7806 | Johnson: topical can have systemic effect in some cases | Secretary: conceded topical can rarely have systemic effect but not presumptively systemic | Court: Agreed topical could be systemic if it affects the body as a whole; but that depends on facts and was not shown here |
| Whether Veterans Court properly considered extra-record evidence and analogous codes (e.g., DC 6602) | Johnson relied on comparisons and extra-record examples to support broad reading | Secretary: Veterans Court misread context and code distinctions; extra-record evidence immaterial | Court: Declined to rely on extra-record evidence; distinguished DC 6602 as context-specific and affirmed ordinary textual reading |
Key Cases Cited
- Hogan v. Peake, 544 F.3d 1295 (Fed. Cir.) (appellate review includes de novo review of statutory and regulatory interpretation)
- O’Bryan v. McDonald, 771 F.3d 1376 (Fed. Cir.) (consulting Dorland’s medical dictionary in disability-case statutory interpretation)