Citation Nr: 0811858 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 06-03 732A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to an increased initial rating for service- connected post-traumatic stress disorder (PTSD), currently evaluated as 30 percent disabling. 2. Entitlement to service connection for pruritis ani. 3. Entitlement to service connection for penile lesions. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD D. Hachey, Associate Counsel INTRODUCTION The veteran served on active duty from September 1967 to July 1970. Service in Vietnam is indicated by the evidence of record. This case comes before the Board of Veterans' Appeals (the Board) on appeal from a January 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office in Newark, New Jersey (the RO). The veteran presented testimony before the undersigned Acting Veterans Law Judge at the RO in September 2007. A transcript of this hearing has been associated with the veteran's VA claims folder. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. REMAND The veteran seeks an increased initial rating for his service-connected PTSD, which is evaluated as 10 percent disabling from September 1, 2004 to April 20, 2006, and as 30 percent disabling from April 21, 2006. He also seeks service connection for pruritis ani and penile lesions. Before the Board can adjudicate these claims, however, additional development is required. Reasons for remand Treatment records The veteran indicated at his September 2007 hearing that he currently receives outpatient psychiatric treatment for PTSD from a Dr. Constantino at the Lyons VA Medical Center (VAMC) once every two to three weeks. See Board Hearing Tr. at 5-6. The most recent treatment records in the veterans claims file from the Lyons VAMC, however, date from February 2007. Updated treatment records from the Lyons VAMC should be sought on remand. The veteran also indicated at the hearing that he currently sees his private psychologist, Dr. Anthony Todaro, on a monthly basis. Id. at 6. With the exception of a September 2007 letter, and limited records dated in June 2006 and April 2007, treatment records from Dr. Todaro have not been associated with the claims file. Updated treatment records from this clinician should also be sought on remand. Following the September 2007 Board hearing, the record was held open for a period of 60 days from the date of the hearing to allow the veteran to obtain and submit some of the additional evidence discussed above. See 38 C.F.R. § 20.709. However, other than a copy of the hearing transcript, no other evidence has been associated with the claims file since the Board hearing. Medical examination The veteran maintains that he currently suffers from pruritis ani and penile lesions and that each of these conditions had its genesis during his period of active duty. The veteran specifically claims that his pruritis ani first manifested itself as rectal irritation and itching in Vietnam which has persisted to the present day. See Board Hearing Tr. at 9-10. The veteran also claims that he was first treated for penile cysts and/or lesions in service and that since that time the condition has persisted. Id. at 7-9; see also statement from the veteran dated February 12, 2005. Because the medical evidence of record does not adequately address the relationship between the veteran's skin disabilities and service, the case must be remanded for an additional VA examination and accompanying etiological opinion. In McLendon v. Nicholson, 20 Vet. App. 79 (2006), the United States of Appeals for Veterans Claims made clear that VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for VA to make a decision on the claim. In the instant case, there is competent evidence of a current disability. The report of an October 2004 VA dermatological examination indicates that the veteran has a penile lesion, which was described as an epidermal cyst. The veteran has also reported a persistent rash in the perianal area. He is competent to testify as to the presence of the same, as a rash is capable of lay observation. See Barr v. Nicholson, 21 Vet. App. 303 (2007). There is also an indication that the veteran's penile lesions and pruritis ani occurred in service and have persisted to the present time. The veteran's service medical records reflect treatment for an infected papule on the shaft of the penis in January 1968. Moreover, the veteran has consistently testified that he began to experience rectal irritation, itching, and rashes in Vietnam and that such symptoms, together with his penile lesions, have persisted to the present time. As noted above, the veteran is competent to testify as to the continuity of these symptoms as they are capable of lay observation. See Barr, supra; see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Thus, the first three McLendon requirements have been satisfied. There also appears to be insufficient competent medical evidence on file for VA to make a decision on the claim, thereby satisfying the fourth McLendon element and triggering VA's duty to obtain an examination. Although the veteran was afforded a VA examination regarding his alleged skin conditions in October 2004, the copy of this examination report which was included in the veteran's claims file appears to be incomplete. Pages one, two, and four are included - page three is not. The pages which are included in the record contain no statement or opinion regarding the relationship between the veteran's current skin problems and his military service. It also appears that the complete report does not include an etiological opinion, based on the RO's description of the same in various adjudicatory documents. Under such circumstances, the Board believes that on remand an additional VA examination should be conducted and an etiological opinion obtained. A complete copy of the October 2004 VA dermatological examination should also be associated with the claims file on remand. Accordingly, the case is REMANDED for the following action: 1. Obtain all treatment records from February 2007 to the present pertaining to the veteran from the Lyons VAMC. 2. Ask the veteran to provide treatment records from Dr. Todaro and all other private health care providers who have treated him for PTSD, pruritis ani, and penile lesions, or ask him to provide VA with the authorization to obtain the same. Attempt to obtain records from each health care provider for which the veteran provides the proper authorization form (except where VA has already made reasonable efforts to obtain records from that provider). If such records are not available, the record should be documented clearly, and the veteran should be notified of that fact. 3. Associate with the claims file a complete copy of the veteran's October 2004 VA dermatological examination. 4. Schedule the veteran for an examination to determine the nature and etiology of his current penile lesions and pruritis ani. The claims folder should be made available to and be reviewed by the examiner in conjunction with the examination. After conducting an examination of the veteran and performing any clinically-indicated diagnostic testing, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater) that the veteran's penile lesion(s) and/or pruritis ani were incurred in or aggravated by any incident of military service. A report of the examination should be prepared and associated with the veteran's VA claims folder. The examiner is requested to explain any opinion provided, and to include supporting references to the veteran's medical record. 5. Thereafter, and after undertaking any additional development deemed necessary, readjudicate the issues of entitlement to an initial increased rating for PTSD and service connection for pruritis ani and penile lesions. If any of the benefits sought on appeal remain denied, in whole or in part, the veteran and his representative should be provided with a Supplemental Statement of the Case and be afforded reasonable opportunity to respond. The case should then be returned to the Board for further appellate review, if otherwise in order. The veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2007). _________________________________________________ Laura H. Eskenazi Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).