Citation Nr: 18141231
Decision Date: 10/10/18	Archive Date: 10/09/18

DOCKET NO. 13-07 560
DATE:	October 10, 2018
REMANDED
Entitlement to compensation pursuant to 38 U.S.C. § 1151 for an acquired psychiatric disorder, to include major depressive disorder, anxiety, and confusion, is remanded.
REASONS FOR REMAND
The Veteran served on active duty from March 1969 to December 1970, with confirmed service in the Republic of Vietnam.
The Veteran testified at a videoconference hearing before the undersigned Board of Veterans’ Appeals (Board) Veterans Law Judge in November 2014.  A transcript of the hearing is associated with the record.  The appeal was remanded in March 2015 and February 2017.
In its February 2017 remand, the Board ordered an examination which was to be performed by an examiner who has not previously examined him [in connection with his compensation claim].  The Veteran was then reexamined by the psychologist who performed a previous Compensation and Pension examination of the examiner in September 2012 in connection with this claim.  As the remand instructions were not complied with, the case must once again be remanded.  
The matter is REMANDED for the following action:
Schedule the Veteran for a VA medical examination, by an examiner who has not previously performed a Compensation and Pension examination in connection with this claim, to determine whether the Veteran has any additional psychiatric disability present during the period of the claim that is a result of April 2012 VA medical care; specifically, narcotics administered following his knee replacement surgery at the Omaha VA Medical Center.  Any tests deemed necessary should be conducted, and all clinical findings should be reported in detail.  Following a review of the Veteran’s records and all indicated testing results, the examiner is directed to provide a medical opinion in response to the following:
(a)	Does the Veteran currently exhibit, or has he at any time since April 2012 exhibited, a psychiatric disability, to include a psychiatric disability characterized by cognitive decline?
(b)	If so, is the psychiatric disability at least as likely as not (50 percent probability or greater) a result of the April 2012 VA medical care? 
(c)	If so, is it at least as likely as not that the psychiatric disability is due to carelessness, negligence, lack of proper skill, error in judgment, or a similar instance of fault on the part of VA administering treatment in April 2012? 
(d)	If the Veteran incurred an additional psychiatric disability as a result of the April 2012 medical care, but such disability was not the result of carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault by VA, was the disability at least as likely as not the result of an event that was not reasonably foreseeable?  Essentially, the Board is asking if a reasonable health care provider would have considered the disability to be an ordinary risk of the treatment provided.
The examiner should provide a complete rationale for all opinions rendered.  The examiner should specifically discuss the pertinent evidence of record, to include the Veteran and his wife’s statements that he developed depression, anxiety, and cognitive impairment following the April 2012 incident and VA treatment records noting treatment for depression and anxiety including the October 22, 2012 VA treatment entry that notes “MDD: meets criteria for depression”.    
 
Nathan Kroes
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	A. Odya-Weis, Counsel