BVA9503033 DOCKET NO. 93-13 136 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Milwaukee, Wisconsin THE ISSUE Entitlement to an increased evaluation for major depression, currently rated 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. L. Kennedy, Counsel REMAND The veteran served on active duty from March 1972 to May 1972 and from November 1975 to January 1979. This appeal arises from a July 1992 rating decision of the Milwaukee, Wisconsin, Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for recurrent major depression, rated 10 percent disabling. The Board of Veterans Appeals (Board) notes that the record on appeal contains a timely filed Notice of Disagreement, signed by the appellant and received by the RO in November 1992, to an October 1992 rating decision of the RO in which the 60 percent disability evaluation assigned the veteran's service-connected seizure disorder was reduced to 10 percent. Additional action was taken by the RO in a February 1993 rating decision to formally implement a Hearing Officer decision which determined that a 20 percent rating was the appropriate disability rating for the veteran's seizure disorder. Thereafter, in a Report of Contact (VA Form 119) dated in May 1993, the veteran's accredited representative referenced telephone contact with the veteran and reported that the veteran wished to continue his appeal only on the issue of an increased evaluation for his service-connected psychiatric disorder. Pursuant to 38 C.F.R. § 20.204, withdrawal of a Notice of Disagreement may be by the appellant or by his representative, except that a representative may not withdraw a Notice of Disagreement filed by the appellant personally without the express written consent of the appellant. This matter must be clarified. The VA has a duty to assist a claimant in the development of facts pertinent to his or her claim under 38 C.F.R. § 3.103(a) (1993). The Court of Veterans Appeals has held that fulfillment of the VA's duty to assist the veteran includes providing him with a thorough and contemporaneous medical examination. Littke v. Derwinski, 1 Vet.App. 90, 92 (1990). The veteran was afforded a VA psychiatric examination in May 1992. Based on this examination, service connection was granted for recurrent major depression, and a 10 percent disability evaluation assigned. However, a review of the appellant's testimony at a hearing in December 1992 indicates that his psychiatric symptoms may have increased in severity and that a more current examination is needed in order to properly rate the veteran's service-connected disorder, particularly with regard to the degree of social and industrial adaptability currently present. Fulfillment of the duty to assist the appellant includes the procurement and consideration of any relevant VA or other medical records. Ferraro v. Derwinski, 1 Vet.App. 326 (1991). The record indicates that the veteran received ongoing treatment for his service-connected psychiatric disorder as an outpatient at the VA medical facility in Madison, Wisconsin, and from a private health care providers. While the record does contain several treatment records from both facilities, the RO should ensure that all current medical records are of record. Additionally, the record indicates that the appellant is attending college and that vocational rehabilitation and counseling folders may be available. In view of the foregoing, and in order to fully and fairly adjudicate the veteran's claim, the case is REMANDED to the RO for the following action: 1. The RO should clarify whether or not the appellant wishes to withdraw his Notice of Disagreement with regard to the reduction of the rating for the service- connected seizure disorder. The RO must process this issue for appellate consideration unless a writing signed by the appellant indicating his desire to withdraw this issue from appellate consideration is added to the records assembled for appellate review. 2. The RO should procure copies of all treatment records relating to treatment of the veteran's service-connected psychiatric disorder from Genesis Counseling Services, Ltd., 2020 East Milwaukee Street, Janesville, Wisconsin, 53545 and particularly those from Garth Fisher, M.S.W., and William Sullivan, M.D., affiliated with that facility, dated from October 1992 through the present. 3. The RO should procure copies of all treatment records relating to treatment of the veteran's service-connected psychiatric disorder from the VA medical facility in Madison, Wisconsin, including the Mental Hygiene Clinic of that facility, regarding treatment from March 1992 through the present. 4. The RO should associate any VA vocational rehabilitation and counseling folders which may be available with the records assembled for appellate review. 5. The veteran should be afforded a VA psychiatric examination to determine the nature and extent of the veteran's service- connected major depression. This examination should be conducted in accordance with the VA Physician's Guide for Disability Evaluation Examinations. All indicated diagnostic tests and procedures, including appropriate psychological studies with applicable subscales, should be accomplished. The claims folder should be made available to the examiner prior to the examination and the examiner should review that file prior to the examination. The examination report should contain all five multiaxial assessment levels as provided in the Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders, including a numerical and narrative assessment of the veteran's level of functioning as measured by the Global Assessment of Functioning (GAF) scale code. Primary personality disorders should be fully described and classified, and the relationship, if any, between the veteran's service-connected major depression, and any personality disorder should be discussed. Additionally, the examiner should specifically state whether or not the major depression results in reduction in initiative, flexibility, efficiency, and reliability levels, and if so, how this relates to the veteran's industrial impairment. 6. The RO should readjudicate the veteran's claim of entitlement to an increased evaluation for major depression. The rating should reflect consideration of the provisions of 38 C.F.R. § 3.321(b)(1). If the determination remains adverse to the veteran, he should be provided a supplemental statement of the case which includes a summary of additional evidence submitted, any additional applicable laws and regulations, and the reasons for the decision. The veteran and his represen- tative should be afforded the applicable time to respond. The case should be returned to the Board for further appellate review on the issue currently in appellate status as well as any issue placed in appellate status during the course of this REMAND. The purpose of this REMAND is to afford the appellant due process of law. The Board intimates no opinion, either factual or legal, as to the ultimate conclusion warranted in this case. GARY L. GICK Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a deter- mination. This proceeding has been assigned to an individual member of the Board. Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Veterans Appeals. This action has been taken in accordance with the Veterans' Benefits Improvements Act of 1994, Pub. L. No. 103-446, § 303, 108 Stat. 4645, ___ (1994), and 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) (1993).