UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 16-2037

R ONALD L. B URTON , A PPELLANT ,

V

.
R OBERT L. W ILKIE , S ECRETARY OF V ETERANS A FFAIRS , A PPELLEE

. On Appeal from the Board of Veterans' Appeals
(Argued July 11, 2018 Decided September 28, 2018)
Jill C. Davenport and Caitlin M. Milo , with whom Barton F. Stichman was on the brief, all of Washington, D.C., for the appellant.

Lavinia A. Derr and James B. Cowden, Deputy Chief Counsel , with whom James M. Byrne , General Counsel; and Mary Ann Flynn , Chief Counsel; were on the brief, all of Washington, D.C., for the appellee.
Before SCHOELEN, GREENBERG, and ALLEN, Judges.

ALLEN, Judge : Ronald L. Burton served our country for nearly three decades in the United States Air Force. Record (R.) at 2344. He is service connected for tinea pedis (athlete's foot). R. at 2332-38. As part of his treatment for this condition, and as re levant to this appeal, he used Clobetasol, a topically applie d corticosteroid, and Benadryl, a n antihistamine. In the February 22, 2016, decision on appeal, the Board of Veterans' Appeals (Board ) denied the appellant a disability rating greater than 10% for his tinea pedis. It also reopened a nd granted a claim for service connection for sleep apnea, favorable findings the Court will n ot disturb. See Medrano v.
Nicholson , 21 Vet.App. 165, 170 (2007). This appeal, which is timely and over which the Court has juris diction, asks the Court to revisit Diagnostic Code (DC) 7806, 38 C.F.R. § 4.118, and its d istinctions between the types of therapy used to treat certain skin disabilities. See 38 U.S.C. §§ 7266(a), 7252(a). We confront two distinct, albeit related, issues. F irst, we must determine the circumstances under which a topically applied corticosteroid may be a "systemic therapy" as contempla ted by the Federal Circuit's
decision in Johnson v. Shulkin, 862 F.3d 1351, 1354-56 (Fed. Cir. 2017). Specifically, the Court must address what "factual circumstances" the Federal Circuit m eant could change a topical2 treatment into a systemic therapy. Second, we must consider howthis Court's decision in Warren
v. McDonald , 28 Vet.App. 194 (2016), that DC 7806 includes treatments that are "like
corticosteroids or other imm unosuppressive drugs" applies in th is case. As we explain below, because the Board failed to properly consider Johnson and Warren when it denied the appellant a higher rating for his tinea pedis, the Court will set aside the February 2016 Board decision and remand this matter for further proceedings as described in this opinion.

I. FACTS AND PROCEDURAL HISTORY Following the appellant's 29 years in the U.S. Air Force, VA g ranted him service connection for tinea pedis in August 2001, assigning a noncompe nsable rating. R. at 2325-33. The appellant filed a claim for an increased rating in February 201 0, R. at 1683, and underwent a VA examination the following month, R. at 2347-48. The examiner no ted that the appellant was treated with a variety of topical treatments, including Clotrimazole, a n antifungal agent, applied twice a day, but that he could not recall the identities of the other t reatments he used. See D ORLAND ' S
I LLUSTRATED M EDICAL D ICTIONARY 375 (32d ed. 2012) [hereinafter D ORLAND ' S ]. The examiner concluded that "no systemic agents were used," although he did not define what he understood "systemic" to mean. R. at 2347-48. VA denied a compensable rating in April 2010, a decision that the appellant appealed. R.
at 1520-21. He underwent another VA examination in December 201 1, in which the examiner noted his use of topical treatments, including Clotrimazole 1% constantly or near constantly during the past 12 months as well as Clobetasol, a corticosteroid. D ORLAND ' S at 373. The examiner noted he also used the antihistamine Benadryl, for less than 6 weeks. R. at 434-35. The examiner also noted that the appellant's tinea pedis covered 5% to 20% of his total body, but no exposed areas.
R. at 437. VA treatment records from May 2012 indicate that the appellant 's medication dosages had increased and he was using Clobetasol daily and Clotrimazole tw o or three times a day. R. at 404. In February 2013, VA increased the appellant's tinea pedis rati ng to 10%, R. at 2511, and he perfected his appeal, R. at 665. In the February 2016 decision on appeal, the Board denied a dis ability rating higher than 10% because the appellant did not r equire systemic therapy such as corticosteroids or other immunosuppressive drugs to treat his tinea pedis. The Board con cluded that "while the record3 demonstrates that the [appella nt] has had constant or near cons tant treatment of [tinea pedis] with topical creams and the use of antihistamines, [the record] cons istently reflects [the skin condition] does not require systemic therapy, such as corticosteroids or o ther immunosuppressive drugs." R.
at 12. The Board relied on the VA examinations that noted the u se of topical creams but no systemic agents.

II. ANALYSIS The appellant's tinea pedis is rated under 38 C.F.R. § 4.118, DC 7813-7806. See 38 C.F.R. § 4.27 (2018) (explaining that a hyphenated diagnostic code ide ntifies "the exact source" of the disability rating assigned). To warrant a 10% rating under DC 7 806, at least 5%, but less than 20%, of the entire body or exposed areas must be affected, or interm ittent systemic therapy such as corticosteroids or other immunosuppressive drugs are required f or a total duration of less than 6 weeks during the past 12-month period. 38 C.F.R. § 4.118, DC 78 06. 1 A 30% rating is warranted if between 20% and 40% of the entire body or exposed areas are affected, or if the appellant requires systemic therapy such as corticosteroids or other immu nosuppressive drugs for a total duration of 6 weeks or more, but not constantly, during the pas t 12-month period. Id. A 60% rating is warranted when more than 40% of the entire body or exposed areas are affected, or the appellant requires constant or near-constant systemic therapy such as cor ticosteroids or other immunosuppressive drugs during the past 12-month period. Id. It is undisputed that the appellant does not qualify for a rati ng higher than 10% based on the percentage of his body affected by his tinea pedis. Rather, the key issue here concerns the types of treatment the appellant's tinea pedis requires and the frequ ency or duration of such treatment. The Board concluded the appellan t was not entitled to a higher rating given the nature of his
treatment. R. at 12. The Board's determinations concerning the degree of disability is a factual finding reviewed under the "clearly erroneous" standard of revi ew. Cullen v. Shinseki , 24 Vet.App. 74, 78 (2010). The Court, however, reviews questions of law, su ch as the interpretation of a DC,
de novo. See Vilfranc v. McDonald , 28 Vet.App. 357, 361 (2017).

1 Effective August 13, 2018, VA amended this provision. See 83 Fed. Reg. 32,592 (July 13, 2018). We discuss this regulatory change further below, but it does not apply to claim s filed before its effective date unless its application would benefit a veteran. See Secretary's Response to Court's August 8, 2018, Order (Secretar y's Clarification) at 3.4 To address the appellant's complaints about the Board's decisio n, the Court must discuss two of the appellant's treatments for his tinea pedis: (1) Clob etasol, which the parties agree is a corticosteroid, Secretary's Brief (Br.) at 7; Appellant's Br. a t 10, and (2) Benadryl, which neither party argues is a corticosteroid or immunosuppressive drug, Sec retary's Br. at 8-9; Appellant's Br.
at 12. We will address each treatment in turn. A. Corticosteroid (Clobetasol) and the Johnson Issue The appellant argues that the Board failed to provide an adequ ate statement of reasons or bases concerning his Clobetasol treatment because it did not ad dress the factual circumstances of that treatment to determine whether this Clobetasol use may be considered systemic therapy, warranting a higher disability rating. Appellant's Br. at 11. H e asserts that the Federal Circuit in
Johnson cited the scale on which a topical treatment is administered a s an example of the factual circumstances satisfying the definition of "systemic therapy," not as the only means by which a topical treatment could be deemed systemic therapy. Id. at 9. In response, the Secretary initially argued in his brief that the Board did not err in considering the appellant's use of Clobetasol because "the treatment is limited to topical therapy of a parti cular surface area that does not affect the body as a whole." Secretary's Br. at 7. This argument seeme d to interpret Johnson to mean that a topical treatment can be systemic therapy only when it is adm inistered on a large enough scale to affect the body as a whole. Id. But, at oral argument, the Secretary's counsel agreed with the appellant that in Johnson the Federal Circuit provided an example and that there are oth er factors that could cause a topical treatment to be considered a systemi c therapy. See Oral Argument (O.A.) at 33:02-34:01, Burton v. Wilkie , U.S. Vet. App. No. 16-2037 (oral argument held July 11, 2018) , http://www.uscourts.cavc.gov/oral_arguments_audio.php. After or al argument, the Secretary filed a motion for leave to clarify his position, based on a regulato ry change. See Secretary's Motion for
Leave To File a Clarification at 1-2. The Court granted the Secretary's request. In his clarificatio n, the Secretary described the regulatory change to DC 7806 that took effect on August 13, 201 8. See generally Secretary's Clarification. The Secretary explained that in a new introducto ry paragraph the amended DC provides that a topically applied treatment cannot qualify as a systemic therapy. Id. at 1,3. Though this change does not apply to claims filed before its effective date, the Secretary stated that VA will apply the version of the DC most favorable to veterans. Id. at 3.The Secretary reiterated his position from oral argument that under Johnson a topically applied tr eatment can be deemed5 systemic therapy "if applied on a large enough scale" or if it "was otherwise shown to have systemic effects on a facts found basis." Id. As we explain now, we conclude (in agreement with the parties) that the Federal Circuit did not mean to restrict the circumstances under which a topica l therapy can be deemed a systemic therapy to the one illustration it mentioned. That example was just that

– an example.
1. The Johnson Decision
In Johnson , the Federal Circuit reversed this Court's decision that under DC 7806 topical corticosteroids categorically constituted systemic therapy. 862 F.3d at 1352. Instead, the Federal Circuit held that the DC contemplated two types of therapy: sys temic and topical. Id. at 1354. The
court referenced Dorland's Illustrated Medical Dictionary in defining "systemic therapy." Id. at 1354-55. The court noted that "systemic" is defined as "pertain ing to or affecting the body as a whole" and "therapy" is defined as "treatment of diseases." Id. at 1355. We will rely on these definitions to guide our analysis. Although the Federal Circuit found a distinction between topica l and systemic therapies, it made clear that sometimes a topical treatment can be systemic therapy. Id. at 1355-56. The Federal Circuit stated that "a topical corticosteroid could be consider ed either a systemic therapy or topical therapy based on the factual circumstances of each case." Id. at 1356. The court went on to opine that a topical therapy could be systemic if it was applied on a large enough scale. Id. at 1355. Yet,
the Federal Circuit did not state whether the scale of administ ration is the only way a topical therapy could be systemic or if that was merely an example. We address this holding next. 2. The Meaning of Factual Circumstances
We hold that the "factual circumstances" Johnson discussed by which a topical treatment may become a systemic therapy under DC 7806 are not limited to situations involving large scale topical application. If one were to read Johnson as limiting the "factual circumstances" by which a topical treatment can be deemed a systemic therapy to only th e scale of application, much of DC 7806 would become essentially redundant. As we have described, DC 7806 provides for rating a disability in two potential ways, percentage of the body (or ex posed areas) affected and the frequency or duration of use of a systemic therapy. If the Fede ral Circuit in Johnson meant that a topical treatment can be considered a systemic therapy based on ly on the scale of application, that interpretation would make redundant to a substantial degree (pe rhaps functionally entirely) the DC's reference to the percentage of the body affected by the sk in condition.6 As a general matter, a court should avoid adopting an interpre tation of a statute or regulation that renders other statutory or regulatory provision s a nullity. See Roper v. Nicholson , 20 Vet.App. 173, 178 (2006); see also Mackey v. Lanier Collection Agency & Serv., Inc. , 486 U.S. 825, 837 (1988). The better reading of Johnson avoids such a result. Our reading is also consistent with a more natural reading of Johnson . Had the Federal Circuit meant to restrict its use of the term "factual circumstances" to large scale topical application , one would think the court would have done so more directly. After all, courts rarely seek to in ject uncertainty into their decisions. And, why would the Federal Circuit have used the plural "circum stances" had it really meant the singular "circumstance"? We hold that large scale application i s merely an example of a factual circumstance that can convert topical treatment into a systemic therapy. The question then becomes, what are other "factual circumstanc es" of topical treatments that can cause them to become systemic therapies? In this matte r, the parties have suggested two such potential avenues: (1) The method by which the treatment w orks to treat the medical condition and (2) the side effects that are possible or actually experien ced as a result of the topical treatment. Creating an exhaustive list of such circumstances is beyond the scope of this matter; however, in addressing the two sets of factual circumstances raised here, w e hope to provide some guidance for assessing potential avenues. a. The Method by which a Treatment Works As discussed above, the Federal Circuit in Johnson adopted the Dorland's definitions of systemic and therapy. Supra Part III, Section A.1. When those definitions are taken together, for a treatment to be systemic therapy warranting a higher disabili ty rating, DC 7806 requires a treatment to "pertain to or affect the body as a whole" and to operate as "treatment of disease."
Johnson , 862 F.3d at 1355. Therefore, to qualify as a systemic therapy it is not enough that the treatment standing alone affects the entire body. Rather, it mu st affect the entire body in its
treatment of the condition at issue.
We read these definitions in Johnson to mean that the Board must determine whether a topical treatment operates by affecting the body as a whole in treating the veteran's ski n condition. Stated a different way, the Board must decide how the topical treatment works

– not by its contact with the affected location of the condition on the body, but in stead in some other way that affects the body more broadly. For example, a topical treatment may aff ect the body as a whole if it circulates through the bloodstream. Thus, in affecting the body as a whole, it essentially would not7 matter whether the topical treatment was applied where the cond ition was located or some other part of the body, as the body in its entirety would be involved in the treatment. How a topical treatment works is a factual question that may, but not necessarily, require a medical opinion for its resolution. The Board may make such a factual finding based on other evidence, such as medical dictionaries. Nielson v. Shinseki , 23 Vet.App. 56, 59 (2009) (citing United States v. Rodgers , 466 U.S. 475, 479 (1984)). But, the Board is limited in its a bility to make its own independent medical determinations. See Colvin v. Derwinski , 1 Vet.App. 171, 175 (1991). In this case, the Board erred by failing to consider whether the appellant's use of Clobetasol was systemic therapy. The Board's analysis stopped at the deter mination that Clobetasol was applied topically and therefore not systemic therapy. See R. at 12. The Board did not discuss whether in its treatment of the appellant's skin condition Clob etasol affects his body as a whole. The Court notes that the Board's incorrect analysis of the top ical Clobetasol treatment perhaps is not surprising given the unhurried pace at which VA has implemented the Federal
Circuit's Johnson decision. First, the VA Adjudication Procedures Manual(M21-1), at the time of the Board's decision, and still today, precludes adjudicators f rom considering whether a topical treatment can be a systemic therapy: The M21-1 categorically st ates that a topically applied treatment can never be a systemic therapy. See VA A DJUDICATION P ROCEDURES M ANUAL (M21- 1), pt. III, subpt. iv, Ch. 4, sec. J.3.f (effective Oct. 5, 20 15); see id. , pt. III, subpt. iv. ch. 4, sec. L.1.f (effective May 14, 2018) (revised Aug. 13, 2018, to refle ct the regulatory change in 38 C.F.R. § 4.118, effective Aug. 13, 2018) (last checked Sept. 12, 2018)

. The M21-1 expressly conflicts with Johnson . 862 F.3d at 1355. The M21-1 specifically reads that treatments "that are applied topically (directly to the skin), including topical corticosteroids or immunosuppressives, are not considered syste mic for VA purposes." See id. , pt. III, subpt. iv, ch. 4, sec. L.1.f (effective May 14, 2018); see also id. , pt. III, subpt. iv, ch. 4, sec. J.3.f (effective Oct. 5, 2015). Although the M21-1 is not bindi ng on the Board, it is a source often consulted by the Board. See DAV v. Sec'y of Veterans Affairs , 859 F.3d 1072, 1077 (Fed. Cir. 2017); see also Gray v. Sec'y of Veterans Affairs , 875 F.3d 1102, 1106 (Fed. Cir. 2017). At oral argument, the Secretary conceded that the M21-1's position was clearly wrong under Johnson but that the manual had not been changed to reflect Johnson . O.A. at 27:47-29:06. The Secretary's clarification describes the regulatory change as adopting the s ame bright line rule that appears in
the M21-1. See Secretary's Clarification at 4. But it is clear that the M21-1 is inconsistent with8 Johnson . The Secretary's delay of a year and counting in updating VA's materials to comply with
a Federal Circuit decision is unacceptable and especially egreg ious because it is not the first time that VA has delayed in implementing a court directive. See O.A. at 29:40-30:09 (discussing Staab
v. McDonald , 28 Vet.App. 50 (2016)). As noted above, after continued delay in updating the M21-1 to reflect Johnson , VA published a final rule and changed DC 7806, effective August 13 , 2018. There is nothing wrong with an administrative agency engaging in rulemaking, as VA has done, when it disagrees with a judicial interpretation of a regulation. Provided the agency fo llows the appropriate procedures, such rulemaking is a prime example of how separation of powers operates in American Government. An agency can change the law going forward. But what an agency may not do is refuse to implement a court's decision while the agency seeks t o change a regulation to conform to its view. Such refusal is antithetical to separation of powe rs. It is not acceptable in a country governed by the rule of law. VA should stop these actions of it s own accord. Otherwise, the courts will have to act to preserve the constitutional separation of p owers. The effective date for VA's regulatory change is August 13, 2018, and the new provision exp ressly provides that "claims pending prior to the effective date will be considered under bo th old and new rating criteria, and whatever criteria is more favorable to the veteran will be appl ied." 83 Fed. Reg. at 32,593, 32,596. Thus, the appellant's claim should be considered under the "old " criteria based on the standards we have described as well as under the "new" criteria. But, it is difficult for us to fathom how the "new" regulatory provision would be more favorable in this case . Of course, we leave that initial
determination to the Board on remand. The Secretary also argues that the Board's decision can be affi rmed based on the medical evidence in the record. Secretary's Br. at 10-11. In its decisi on, the Board relied on March 2010 and December 2011 VA medical opi nions to support its conclusionthat the appellant's Clobetasol treatment was not systemic therapy. R. at 11-12. Relying on the se examination reports does not help the Board. The Disability Benefits Questionnaire (DBQ) the examiners used, similar to the M21-1, presents a binary choice when describing a treatment as either topical or systemic. R. at 434-35. Specifically, the DBQ asks that the examiner indicate ( by marking a box) whether the veteran uses "systemic corticosteroids or other immunosuppressi ve medications," without asking whether that medication is topical; and when asked whether a ve teran uses a "topical corticosteroid," the examiner is not asked whether it is system ic therapy. Id. As the appellant noted9 at oral argument, the VA Clinician's Guide had instructions to examiners very similar to those provided in the M21-1: "State whether medications used are syst emic or topical." See O.A. at 24:50-25:20; VA C LINICIAN ' S G UIDE § 2.24(b)(2) (2015). Thus, it is not clear whether the VA examiners considered the appellant's use of topical Clobetasol as a potentially systemic therapy, given that the instructions they received were incorrect as a m atter of law. Once again, the Board did nothing to explain its reasoning in this regard. And finall y, the examiners did not define "systemic,", and the Board did not take any steps to address th is question either. Based on the above, remand is required because the Board faile d to provide an adequate statement of reasons or bases for its discussion of the appella nt's Clobetasol use. See Tucker v.
West , 11 Vet.App. 369, 374 (1998). In considering the matter on rem and, the Board must discuss the factual circumstances of the appellant's topical Clobetasol use and whether this use can be considered systemic therapy base d on the principles we have art iculated.
b. Side Effects At oral argument, the parties also raised the issue of whether side effects of a topical
treatment are "factual circumst ances" that could can that treat ment to be considered a systemic therapy. Given the definition of "systemic therapy" Johnson provided, we reject the relevance of side effects in determining whether a topical treatment is a sy stemic therapy. It is simply not enough under DC 7806 for something to be systemic; it must also be treatment for the condition. Therefore, if a treatment does not affect the body as a whole i n the way in which it treats a skin condition, it cannot be considered systemic therapy for that skin condition, regardless of whether
side effects result. As the Secretary pointed out at oral argument, side effects can raise the possibility of secondary service connection. O.A . at 34:54-35:12. But, they ar e irrelevant to determining whether a topical treatment is a systemic therapy for the purposes of a higher disability rating under DC
7806. B. Non-Corticosteroid or Immunosuppressant (Benadryl) and the Warren Issue The appellant also argues that the Board failed to provide an adequate statement of reasons or bases for its conclusion that there was no evidence of syste mic therapy for his condition by his use of something "like" corticosteroids or immunosuppressive dr ugs. Appellant's Br. at 12. Specifically, he argues that the Board failed to address whethe r Benadryl is like or similar to a corticosteroid. If it were, and if its use was systemic therapy , he might be entitled to a higher rating10 under DC 7806 under this Court's decision in Warren v. McDonald

. Id. ; Warren , 28 Vet.App. 194 (2016). Although neither party argues that Benadryl is a cortic osteroid or an immunosuppressive drug, the Secretary suggests that the Board did not need to rea ch the issue whether Benadryl was "like" a corticosteroid or other immunosuppressive drug because that inquiry is only relevant once a determination has been made on whether the treatment is a sys temic therapy used for a certain period of time. Secretary's Br. at 8.
In Warren , this Court held that "systemic therapy" in DC 7806 was not li mited to corticosteroids or immunosuppressive drugs. 28 Vet.App. at 197. Rather, the use of the phrase "such as" in DC 7806 before "corticosteroids or other immunosup pressive drugs" means that "those drug types do not constitute an exhaustive list of all c ompensable systemic therapies, but rather serve as examples of the kind and degrees of treatments used to justify a particular disability rating." Id. Therefore, the Board must determi ne whether a given treatment is "like" a corticosteroid or other immunosuppressive drug in determining w hether the treatment constituted a systemic therapy to warrant a higher rating. Id. We hold that nothing in Warren requires a certain order in which the Board must determine if a treatment is a systemic the rapy or like a corticosteroid o r immunosuppressive drug. Both elements must be present to justify a higher rating under DC 78 06, but the order in which they are addressed is of no import. Therefore, the Court holds that remand is warranted in this case because the Board did not address whether Benadryl was "like" corticost eroids or other immunosuppressive drugs. And, in any event, even if the sequenc e of these questions mattered, the Board did not address whether Benadryl constitutes a system ic therapy according to the definition discussed above. As the Secretary conceded, it appears, however, that Benadryl would be considered a systemic therapy in terms of "affecting the bod y as a whole." O.A. at 46:40-54. As with determining whether a treatment is a systemic therapy, whether Benadryl is like corticosteroids or other immunosuppressive drugs is a factual q uestion to be addressed by the
Board in the first instance. See Hensley v. West , 212 F.3d 1255, 1263 (Fed. Cir. 2000); see also 38 U.S.C. § 7261(c). Again, the Court notes that the Board mustbe cognizant that the Board is prohibited from making its own medical judgments in answering these questions. See Colvin , 1 Vet.App. at 175. We suspect that in many cases, the answer to this question will require a medical opinion. But we do not hold that such an opinion is categorical ly required.11 Finally, the Secretary argues that the Board's failure to disc uss Benadryl and whether it is "like" corticosteroids or immunosuppressive drugs is harmless e rror. Secretary's Br. at 8-9. He points out that the evidence of record showed that the appellan t used Benadryl for less than 6 weeks, which would preclude a higher disability rating. Id. But, the Board appears to have made a different finding. In its decision, the Board noted the appella nt's "use of antihistamines for more
than six weeks" and later described such use as "constant or ne ar constant." R. at 12. This finding appears to be favorable, and the Court may not disturb it. See Medrano , 21 Vet.App. at 170. The Secretary argues that the Board was applying the "constant or n ear constant" language to the use of a topical cream and not Benadryl. O.A. at 44:27-45:30. But, the Court finds this reading of the Board's language unnatural. At the very least, the different po ssibilities raised by the Board's decision further underscore the need for adequate reasons or ba ses. The Court is unable to conclude that the Board's flawed analys is of the appellant's use of Benadryl to treat his tinea pedis is harmless. See 38 U.S.C. § 7261(b)(2); Shinseki v. Sanders , 556 U.S. 396, 409 (2006). Thus, remand is required. See Allday v. Brown , 7 Vet.App. 517, 527 (1995).
C. A Final Matter As noted above, the appellant has used Clotrimazole to treat h is tinea pedis throughout the period on appeal. R. at 404, 2347. Although it is a topically a pplied treatment, like Clobetasol, it is not clear whether it is either a systemic therapy or similar to a corticosteroid or other immunosuppressive drug under the standard we have set forth. Th erefore, in considering this matter on remand, the Board must analyze the use of Clotrimazol e under the rules provided by
Johnson and Warren as laid out in this decision. D. Summary The Court concludes that judicial review is frustrated and rem and is warranted for the Board to provide an adequate statement of reasons or bases in c onsidering whether use of Clobetasol, a corticosteroid, is a systemic therapy and in dete rmining whether Benadryl is "like" a corticosteroid or immunosuppressive drug and a systemic therapy used for more than 6 weeks. See
id. ; see also Tucker , 11 Vet.App. at 374. Because the Court is remanding this matte r to the Board for readjudication, the Court need not now address the appellan t's remaining arguments, including those related to his other tinea pedis treatments, and he can present them to the Board below. Best v. Principi , 15 Vet.App. 18, 20 (2001). On remand, the appellant may submi t additional evidence and argument and has 90 days to do so from the date of VA's pos tremand notice. Kutscherousky12 v. West , 12 Vet.App. 369, 372-73 (1999) (per curiam order); see also Clark v. O'Rourke , 30 Vet.App. 92 (2018). The Board must consider any such additio nal evidence or argument
submitted. Kay v. Principi , 16 Vet.App. 529, 534 (2002). The Board must also proceed expeditiously. 38 U.S.C. §§ 5109B, 7112.

III. CONCLUSION After consideration of the parties' briefs, oral arguments, th e record on appeal, and the governing law, the Court SETS ASIDE the February 22, 2016, Boar d decision and REMANDS the matter for further proceedin gs consistent with this opinion

.