Citation Nr: A21020677 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 200526-87850 DATE: December 30, 2021 REMANDED Entitlement to an initial compensable rating for service-connected depression from November 7, 2013, is remanded. REASON FOR REMAND The Veteran served on active duty from August 1983 to June 1986 and from August 1990 to July 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal of a June 2019 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Board granted the Veteran's claim for service connection for depression. In a June 2019 rating decision, the RO assigned a 0 percent rating effective November 7, 2013. In May 2020, the Veteran selected the Direct Review Docket when she opted into the AMA review system by submitting an Appeals Modernization Act (AMA) Notice of Disagreement VA Form 10182. Under the AMA direct review option, review of evidence is restricted to that which was already of record on the date of the appealed decision. The Board must remand to the AOJ to correct pre-decisional duty-to-assist errors. 38 C.F.R. § 20.802(a). Further, remands for additional development are restricted and only permitted to correct duty-to-assist errors that occurred prior to issuance of the appealed decision, June 24, 2019. The Board notes where the record does not adequately reflect the current state of a veteran's disability, fulfillment of the statutory duty to assist requires a contemporaneous medical examination. Allday v. Brown, 7 Vet. App. 517, 526 (1995); Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a). Here, the Veteran was last afforded a VA mental health examination in June 2014. As a result of the June 2014 examination, the Veteran was denied service connection for depression. However, as referenced above, the Board granted the service connection claim for depression in the July 2018 Board decision. The Board granted the Veteran's claim in part due to a private nexus opinion submitted by the Veteran in June 2016 by Dr. H.H.G. More importantly, in a November 2018 VA mental health note, the Veteran self-referred herself to mental health with increasing symptoms related to past traumas. The Veteran reported that her symptoms started overwhelming her about three weeks prior when she was reminded of her military experience. The Board finds that VA has committed a pre-decisional duty-to-assist error in not affording the Veteran a contemporaneous examination prior to the June 2019 rating decision. The last VA examination the Veteran received for her depression was in June 2014, around five years prior to the June 2019 rating decision. Additionally, the Veteran reported worsening symptoms of her depression over six months prior to the rating decision on appeal. Because VA's statutory duty to assist includes obtaining a contemporaneous medical examination to adequately assess the current severity of the Veteran's service-connected depression, remand is required so that the Veteran may be afforded a VA examination to address the severity of her depression that would assist in fully and fairly evaluating the Veteran's claim for an increased rating. 38 C.F.R. §§ 3.327(a), 20.802(a). The matter is REMANDED for the following action: Schedule the Veteran for a VA mental health examination with a qualified psychiatrist or psychologist to address the severity of the Veteran's depression. The entire claims file, to include a complete copy of this REMAND, private medical opinions, and lay statements, must be made available to the medical professional designated to examine the Veteran, and the examination report should include discussion of the Veteran's documented medical history and assertions relating to any symptoms related to her mental health condition. All opinions must be supported by a rationale. A. C. MACKENZIE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Hetman The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.