Tremell L. Warren v. Robert A. McDonald
2016 U.S. Vet. App. LEXIS 687
| Vet. App. | 2016Background
- Tremell L. Warren, Navy veteran, sought VA disability for bilateral onychomycosis; initially rated noncompensable (2007) then 10% (2007); appealed to Board.
- Medical records show long-term oral terbinafine (Lamisil) use; VA examiners described it as "systemic" but not a corticosteroid or immunosuppressive drug.
- March 2012 Board remanded for medical opinion whether Lamisil is a corticosteroid or immunosuppressive drug; examiner answered it was systemic but not a corticosteroid or immunosuppressive.
- August 13, 2013 Board denied rating above 10% reasoning Diagnostic Code (DC) 7806 contemplates only systemic therapy involving corticosteroids or other immunosuppressive drugs.
- Court reviewed whether the phrase "systemic therapy such as corticosteroids or other immuno-suppressive drugs" in DC 7806 limits compensable systemic therapies to corticosteroids/immunosuppressives.
- Court vacated Board decision and remanded for readjudication because Board misinterpreted DC 7806 and failed to make required factual findings whether Lamisil is a systemic therapy "like or similar to" corticosteroids or other immunosuppressive drugs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether "systemic therapy such as corticosteroids or other immunosuppressive drugs" is limited to immunosuppressive drugs | Warren: "such as" means examples; compensable systemic therapies include therapies like Lamisil | Secretary: Plain text shows systemic therapy must involve immunosuppressive drugs (corticosteroids are example) | Court: "such as" gives examples; DC 7806 not limited to corticosteroids/immunosuppressives |
| Whether Board erred by focusing only on whether Lamisil is a corticosteroid/immunosuppressive | Warren: Board applied wrong legal standard; needed to assess whether Lamisil is similar to listed examples | Secretary: Relied on that narrow reading | Held: Board provided inadequate reasons/bases; must determine if Lamisil is "like or similar to" listed therapies |
| Adequacy of March 2012 VA medical opinion | Warren: Opinion inadequate because based on Board's limited instruction | Secretary: (did not meaningfully contest here) | Court: Opinion answered only whether Lamisil is a corticosteroid/immunosuppressive; may be insufficient if Board needs an opinion whether Lamisil is similar to listed therapies; obtain new opinion if necessary |
| Whether VA practice supports Secretary's litigation position | Warren: M21-1MR treats "such as" as any oral/parenteral medication; Board has applied that broader view | Secretary: Argued for narrow reading in litigation | Court: Secretary's litigation position inconsistent with M21-1MR and plain meaning; not persuasive |
Key Cases Cited
- Mauerhan v. Principi, 16 Vet.App. 436 (2002) ("such as" indicates examples, not exhaustive list)
- Tropf v. Nicholson, 20 Vet.App. 317 (2006) (plain meaning of regulation controls review)
- Brown v. Gardner, 513 U.S. 115 (1994) (interpretation of regulations/statutes by their plain language)
- Gilbert v. Derwinski, 1 Vet.App. 49 (1990) (Board must provide adequate statement of reasons or bases)
- Tucker v. West, 11 Vet.App. 369 (1998) (remand required when Board misapplies law or record inadequate)
- Johnson v. McDonald, 27 Vet.App. 497 (2016) (court will not rewrite poorly drafted regulations)