Citation Nr: 1319412 Decision Date: 06/14/13 Archive Date: 06/21/13 DOCKET NO. 07-39 018 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a hearing loss disability on a direct basis or as secondary to service-connected residuals of tonsillectomy. 2. Entitlement to service connection for a respiratory disorder, to include as due to asbestos exposure. 3. Entitlement to service connection for a skin disorder of the face and neck, to include as due to exposure to herbicides. 4. Entitlement to service connection for an acquired psychiatric disorder, claimed as depression, anxiety, and posttraumatic stress disorder (PTSD). 5. Entitlement to service connection for substance abuse. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Hal Smith, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to June 1970. His awards and decorations included the Vietnam Service Medal and the Republic of Vietnam Campaign Medal. These matters are before the Board of Veterans' Appeals (Board) on appeal from December 2006 and April 2008 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In September 2012, the Board remanded the current claims for additional evidentiary development, and they have now been returned for further appellate consideration. The following determinations are based on review of the Veteran's claims file in addition to his Virtual VA "eFolder." The issues of entitlement to service connection for hearing loss and for substance abuse are addressed in the REMAND that follows the ORDER section of this decision. FINDINGS OF FACT 1. The Veteran's post service respiratory abnormalities have been variously diagnosed and include asthma, bronchitis, sinusitis, rhinitis, and upper respiratory infections (URIs); these conditions were first manifested after service discharge and are not shown to be related to asbestos exposure and/or any other event in service. 2. A skin condition of the face and neck is not related to any disease, injury, or incident of service, to include exposure to herbicides. 3. Resolving all reasonable doubt in the Veteran's favor, it is concluded that he was physically assaulted during service; a currently diagnosed anxiety disorder is etiologically related to the inservice assault. CONCLUSIONS OF LAW 1. A respiratory disorder, to include as due to asbestos exposure, was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.303 (2012). 2. A skin condition was not incurred in or aggravated by the Veteran's active duty military service and may not be presumed to have been incurred in or aggravated by such service. 38 U.S.C.A. §§ 1110, 1112, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). 3. The criteria for service connection of an acquired psychiatric disorder, diagnosed as anxiety disorder, are met. 38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2010). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify him what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(b) (2012). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012); 38 C.F.R. § 3.159(c) (2012). Subsequent judicial decisions have clarified the duties to notify and assist imposed by the VCAA, to include Pelegrini v. Principi, 18 Vet. App. 112 (2004), Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 ((Fed. Cir. 2006), and Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Initially, as to the claim of service connection for an acquired psychiatric disorder, considering the claim on appeal in light of the above-noted legal authority, and in light of the Board's favorable disposition of this matter, the Board finds that all notification and development action needed to fairly resolve the claim has been accomplished. As to the additional claims on appeal, VA has a duty under the VCAA to notify a claimant and any designated representative of the information and evidence needed to substantiate a claim. In this regard, letters to the Veteran from the RO (to include letters in February 2005, April 2005, July 2005, January 2006, March 2006, October 2007, and November 2012) specifically notified him of the substance of the VCAA, including the type of evidence necessary to establish entitlement to service connection on a direct and presumptive basis, and of the division of responsibility between the Veteran and the VA for obtaining that evidence. Consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VA essentially satisfied the notification requirements of the VCAA by way of these letters by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his claims; (2) informing the Veteran about the information and evidence VA would seek to provide; and (3) informing the Veteran about the information and evidence he was expected to provide. The United States Court of Appeals for Veterans Claims (Court) held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, to specifically include that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In the present appeal, the Veteran was provided with notice of this information in the March 2006 and October 2007 letters mentioned above. Also, VA has made reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate his claims. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). The information and evidence associated with the claims file consist of his service treatment records (STRs), VA medical treatment records, private post-service medical treatment records, VA examinations, and statements and testimony from the Veteran and his representative. There is no indication that there is any additional relevant evidence to be obtained by either VA or the Veteran. Additionally, as noted in the Board's September 2012 remand, additional development included the obtainment of additional treatment records and for ear/audiological examination. Review of the record at the current time reflects that additional records were obtained and are now included in the claims file and in the virtual records, and the requested exam was held in November 2012. The Board finds that the examination was adequate as the examiner conducted a thorough interview with the Veteran regarding his history and symptoms as well as the appropriate hearing tests. The examiner reviewed the claims file and provided supporting rationale for her conclusion that it is less likely than not that the Veteran's left ear current threshold values are secondary to acoustic trauma in the military. Moreover, it was noted that there was no right ear hearing loss. Instead, his hearing impairment was due to labyrinthitis or a small intra-labyrinthine schwannoma as noted in the record in 2006. For these reasons, the Board finds that the November 2012 VA examination report is adequate for adjudication purposes. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion). The Board notes that the Veteran has not been afforded a VA examination with respect to his claims for service connection for respiratory disorders and for skin disorders. However, as will be discussed below, the competent, credible, and probative evidence of record fails to demonstrate evidence of any complaints, treatment, findings, or diagnoses referable to respiratory or skin conditions during service or until many, many years after service. Moreover, exposure to asbestos is not demonstrated. As to his skin disorder, the Veteran testified in 2009 that he first had a skin problem in the late 1990s and reoccurred in 2008. (Hrg. tr. at pg 8-9.) He contends, primarily, that this disorder resulted from exposure to herbicides, and that he is entitled to presumptive service connection based on exposure to herbicides. However, it is noted that there is no presumptive relationship between the Veteran's diagnosed skin condition and herbicide exposure, to include Agent Orange. Therefore, the Board finds that there is no indication that a respiratory disorder or a skin condition, or persistent or recurrent symptoms of such diseases or conditions, may be associated with the Veteran's military service. Thus, a remand for examinations and/or opinions is not necessary to decide the claims. See 38 C.F.R. § 3.159 (c)(4) (2012); McLendon v. Nicholson, 20 Vet. App. 79 (2006) (discussing circumstances when a VA examination is required). After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). No additional assistance is required to fulfill VA's duty to assist. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). Service Connection Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty or for aggravation of preexisting injury suffered or disease contracted in the line of duty. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d) (2012). Where there is a chronic disease shown as such in service or within the presumptive period under § 3.307 so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however, remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b) (2012). This rule does not mean that any manifestations in service will permit service connection. To show chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time as distinguished from merely isolated findings or a diagnosis including the word "chronic". When the disease entity is established, there is no requirement of evidentiary showing of continuity. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b) (2012). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313 (Fed Circ. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed. Cir. 1996) (table). A lay claimant is competent to provide testimony concerning factual matters of which he or she has firsthand knowledge (i.e., reporting something seen, sensed or experienced). Barr v. Nicholson, 21 Vet. App. 303 (2007); Washington v. Nicholson, 19 Vet. App. 362 (2005). Under certain circumstances, lay statements may serve to support a benefits claim by supporting the occurrence of lay-observable events or the presence of disability, or symptoms of disability, susceptible of lay observation. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In Barr, the Court emphasized that when a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination "medical in nature" and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence supports a finding of the presence or absence of the claimed symptomatology. However, there are clearly limitations regarding the competence of a lay claimant to speak to certain matters, such as those involving medical diagnosis and etiology. See Jandreau, 492 F.3d at 1377 (Fed. Cir. 2007) (noting that a layperson not competent to diagnose a form of cancer). VA has defined competent lay evidence as any evidence not requiring that the proponent have specialized education, training or experience. 38 C.F.R. § 3.159(a)(1) (2012). Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a layperson. Id. Further, competent medical evidence is defined as evidence provided by a person who is qualified through education, training or experience to offer medical diagnoses, statements or opinions. 38 C.F.R. § 3.159(a)(2) (2102). The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C.A. § 5107(a) (West 2002 & Supp. 2012). See Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009). In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b) (West 2002 & Supp. 2012). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id. Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner." Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Notably, the benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility. See 38 C.F.R. § 3.102 (2012). A respiratory disorder, to include as due to asbestos exposure. The Veteran contends that his currently manifested respiratory disorder is causally related to asbestos exposure during active service. He alleges asbestos exposure while working on ships that were being decommissioned. (See August 2009 hearing testimony at pg. 4.) His asthma started right after service discharge. In addition to the pertinent laws and regulations pertaining to service connection noted above, it is noted that there is no specific statutory guidance with regard to asbestos-related claims, nor has the Secretary promulgated any regulations in regard to such claims. However, the VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, provides information concerning claims for service connection for disabilities resulting asbestos exposure. The date of this amended material is December 13, 2005. The United States Court of Appeals for Veterans Claims (Court) has held that VA must analyze an appellant's claim for service connection for asbestosis or asbestos-related disabilities under the appropriate administrative guidelines. Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). The Manual defines asbestos as a fibrous form of silicate mineral of varied chemical composition and physical configuration, derived from serpentine and amphibole ore bodies. M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Subsection (a). Common materials that may contain asbestos are steam pipes for heating units and boilers, ceiling tiles, roofing shingles, wallboard, fire-proofing materials, and thermal insulation. Id. at Subsection (a). Some of the major occupations involving exposure to asbestos include mining, milling, shipyard work, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products (such as clutch facings and brake linings), and manufacture and installation of products such as roofing and flooring materials, asbestos cement sheet and pipe products, and military equipment. Id. at Subsection (f). Asbestos fiber masses have a tendency to break easily into tiny dust particles that can float in the air, stick to clothes, and may be inhaled or swallowed. Id. at Subsection (b). Inhalation of asbestos fibers can produce fibrosis (the most commonly occurring of which is interstitial pulmonary fibrosis, or asbestosis), tumors, pleural effusions and fibrosis, pleural plaques, mesotheliomas of pleura and peritoneum, and cancers of the lung, bronchus, gastrointestinal tract, larynx, pharynx, and urogenital system (except the prostate). Id. at Subsection (b). The latent period for the development of disease due to exposure to asbestos ranges from 10 to 45 or more years (between first exposure and the development of disease). Id. t Subsection (d). The adjudication of a claim for service connection for a disability resulting from asbestos exposure should include a determination as to whether or not: (1) service records demonstrate the veteran was exposed to asbestos during service; (2) development has been accomplished sufficient to determine whether or not the veteran was exposed to asbestos either before or after service; and (3) a relationship exists between exposure to asbestos and the claimed disease in light of the latency and exposure factors. Id. at Subsection (h). The Board observes that the Veteran served in the Republic of Vietnam. In this case, the Veteran does not allege combat-related respiratory injury or manifestations of disability during combat. As such, the provision of 38 U.S.C.A. § 1154(b), which provide relaxed adjudicative evidentiary requirements for determining what happened in service, do not apply. The evidence reflects that the Veteran served in the United States Navy from October 1968 to June 1970. His STRs do not reflect any lay or medical evidence of respiratory disability. Moreover, these records, to include his service personnel records (SPRs), do not contain any direct evidence of asbestos exposure. The evidence reflects that the Veteran was a Gunner's Mate during service. According to a May 2002 VA Memorandum, the Department of the Navy has advised VA that, in general, the SPRs would not usually contain documents stating specifically whether or not a veteran was exposed to asbestos. Based upon known job duties, the Department of the Navy estimates that an individual with Gunner's Mate MOS would have had a minimal probability of asbestos exposure. Although it is acknowledged that there was asbestos onboard naval ships, based on the history provided, [the Veteran] did not participate in activities nor work locations where he would have had significant exposure. In addition, there is no evidence that he has developed any asbestos related medical conditions. The first available postservice medical records reflect the Veteran's diagnosis of bronchial asthma in 1994. Subsequently dated records show variously diagnosed respiratory problems in the years since, to include sinusitis and upper respiratory infection (URI) in 2003 and rhinitis in 2004 and 2005. Virtual records reflect treatment most recently for bronchial asthma. At no time did any medical personnel records attribute the Veteran's postservice respiratory problems to service, to include alleged asbestos exposure. Additionally, to the extent that the Veteran has contended that he has experienced a respiratory disorder since his service discharge, the Board finds such statements to lack credibility and, therefore, accords no probative weight to such contentions. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza v. Brown, 7 Vet. App. 498 (1995). In the instant case, the Board finds the Veteran's statements regarding continuity of symptomatology to be not credible as they are inconsistent with the other evidence of record and were made under circumstances indicating bias or interest. While the Board cannot determine that lay evidence lacks credibility solely because it is unaccompanied by contemporaneous medical evidence, the Board may, however, in the present case, consider a lack of contemporaneous medical evidence as one factor in determining the credibility of lay evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1336-37 (Fed. Cir. 2006). In this regard, the Board notes that there is a lack of evidence of a diagnosis of a respiratory disorder for many years following service. The first indication of such condition is not until approximately 24 years following separation from service. Therefore, the Veteran's current statements, made in connection with his pending claim for VA benefits, that he has had a respiratory disorder since service, are inconsistent with the contemporaneous evidence. His lay assertions of continuity of symptomatology are less credible and persuasive in light of the other evidence of record, and are, in fact, outweighed by this evidence. Consequently, based on the foregoing evidence, the Board finds that the Veteran's statements regarding continuity of symptomatology to be not credible. Based upon review of the evidentiary record, the Board finds that the Veteran's currently manifested respiratory abnormality, diagnosed as bronchial asthma, first manifested after service discharge and is not shown to be related to alleged asbestos exposure and/or any other event in service. The service connection claim, therefore, must be denied. The benefit of the doubt rule is not for application. Ortiz v. Principi, 274 F. 3d. 1361, 1365 (Fed. Cir. 2001) (benefit of doubt rule does not apply when preponderance of evidence is against claim). A skin disorder of the face and neck, to include as due to exposure to herbicides. The Veteran contends that he has a skin disorder which began in service or was caused by exposure to herbicides in service. No skin problems were noted or diagnosed during service. Post service private records dated in November 1998 reflect that he had a lesion removed from this neck. Many years later, in 2008, VA records show that the Veteran was seen for a growth on his left check. He said it had been there for several years. Examination showed a 1 cm. verrucous brown,"stuck-on" plaque and scattered smaller brown "stuckons." There were papules on the upper cheeks bilaterally. Treatment included a shave biopsy, hemostasis achieved with aluminum chloride, and application of ointment and bandage. The final diagnosis was seborrheic keratoses. In addition to the pertinent laws and regulations recited earlier, VA regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 U.S.C.A. § 1116 (West 2002 & Supp. 2012); 38 C.F.R. § 3.307(a)(6)(iii) (2012). For purposes of applying the presumption of exposure to herbicides under 38 C.F.R. § 3.307(a)(6)(iii), the serviceman must have actually been present on the landmass or the inland waters of Vietnam during the Vietnam era. See Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008). When reviewing the evidence of record, the Board notes that the Veteran did serve in Vietnam during the Vietnam War. Thus, it is presumed that he was exposed to herbicides while in Vietnam. However, only those diseases associated with exposure to certain herbicide agents, listed in 38 C.F.R. § 3.309(e) will be considered to have been incurred in service under the circumstances outlined in that section even though there is no evidence of such disease during the period of service. In this case, the Veteran's contended skin condition, diagnosed as seborrheic keratoses, is not a disease that has been associated with exposure to herbicide agents. 38 C.F.R. §§ 3.307(a)(6)(iii); 3.307(d), 3.309(e) (2012). Specifically, there is no indication that the Veteran was diagnosed with chloracne or any covered skin condition. Accordingly, because the Veteran cannot prevail on the theory of herbicide presumption, the Board will instead adjudicate the claims on a direct basis. As noted above, the Veteran's STRs do not evidence that a skin condition was diagnosed in service. Therefore, the aboard finds that chronicity in service is not established in this case. There is additionally no indication that the Veteran's skin condition was caused by his service, including exposure to herbicides in service, as there is no evidence of a skin condition in service or for many years following service. In that regard, there is a lack of continuity of treatment for a skin condition in this instance. The first indication of a skin condition is not until 1998, over 25 years after service. Finally, there is no medical nexus of record relating the current skin condition with service. Significantly, the Veteran has not stated how his skin condition is related to his service other than as due to herbicide exposure. Thus, the probative, credible, and competent evidence of record is against the claim for service connection for a skin condition on a direct basis. The Board notes that the Veteran has contended on his own behalf that his skin condition is related to his military service, to include his exposure to herbicides. While he is competent to testify as to symptoms of a skin condition, as well as his in-service duties that exposed him to herbicides, he is not competent or qualified, as a layperson, to render an opinion concerning the complex medical relationship between a skin condition and exposure to herbicides. See Barr, Layno, supra. Additionally, to the extent that the Veteran has contended that he has experienced a skin condition since his service discharge, the Board finds such statements to lack credibility and, therefore, accords no probative weight to such contentions. In weighing credibility, VA may consider interest, bias, inconsistent statements, bad character, internal inconsistency, facial plausibility, self interest, consistency with other evidence of record, malingering, desire for monetary gain, and demeanor of the witness. Caluza, Buchanan, supra. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's claims of entitlement to service connection for a skin condition, to include as secondary to herbicide exposure. As such, that doctrine is not applicable in the instant appeal, and his claims must be denied. 38 U.S.C.A. § 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.102 (2012); Gilbert, Ortiz, supra. Service connection for an acquired psychiatric disorder. It is contended that service connection is warranted for an acquired psychiatric disorder, variously claimed. Review of the record is negative for diagnosis of an acquired psychiatric disorder until many years after service. In the year after discharge in 1971, records show that he was found competent to stand trial. He ultimately went to prison for burglary. In addition to the pertinent laws and regulations regarding service connection related above, as to the claim for service connection for PTSD, service connection for PTSD requires medical evidence diagnosing the condition in accordance with 38 C.F.R. § 4.125(a) (conforming with the American Psychiatric Association 's Diagnostic and Statistical Manual of Mental Disorders (4th ed.)) (DSM-IV); a link, established by medical evidence, between current symptoms and an in-service stressor; and credible supporting evidence that the claimed in-service stressor occurred. 38 C.F.R. § 3.304(f) (2012). If a PTSD claim is based on in-service personal assault, evidence from sources other than the Veteran's service records may corroborate the Veteran's account of the stressor incident. A medical opinion may also serve to corroborate the allegations, where an appropriate professional opines that the evidence indicates the assault occurred. 38 C.F.R. § 3.304(f)(5) (2012). In 2005, the Veteran filed a claim for service connection for psychiatric disorders, to include PTSD. In a file replete with Veteran's statements (and in 2009 testimony), the Veteran has always related that his inservice stressors included an incident wherein he was personally assaulted by fellow servicemen. This incident included a cocked gun being pointed at him, and, in many instances, the Veteran said that he was so scared that he urinated on himself. VA treatment records beginning in 2005 reflect psychiatric diagnoses, to include adjustment disorder, major depressive disorder, and PTSD. At the time of the most recent VA psychiatric examination in February 2011, the examiner noted that the Veteran did not meet the criteria for PTSD. However, she diagnosed anxiety disorder and opined that this condition was due to the Veteran's inservice personal assault. The Board concludes that the inservice personal assault as alleged by the Veteran did occur. While there are no corroborating contemporaneous records, the Veteran's alternate submissions tend to support his allegation, and there is no contradictory evidence. His statements regarding the assault with a gun are themselves competent evidence of the events. He is capable of reporting his observations and events as experienced through his five senses. Jandreau, supra. Moreover, in the years since he first filed his claim, the inservice assault with the gun being placed under his chin (resulting in his being so frightened that he urinated on himself), has consistently been one of the primary reported stressors. Finally, a VA physician opined in 2011 that she believed that while PTSD was not indicated, the Veteran's anxiety disorder did result from the inservice assault as he alleged. It is true that prior to March 2005 there was no allegation regarding an assault. It is also noted that his psychiatric complaints are not reflected in medical documents prior to proximately this time. However, the Board notes that his stressors since the inception of his treatment for psychiatric problems have primarily included his experiences during his service in Vietnam, to include the inservice personal assault as acknowledged above. While a negative inference may be drawn from the absence of complaints or treatment for an extended period, Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom, Maxson v. Gober, 230 F.3d 1330, 1333 Fed. Cir. 2000), any such inference here is outweighed by the supporting evidence. With the establishment of an in-service stressor event, the analysis turns to consideration of a current disability and a nexus to service. VA treatment records document continued diagnosis of and treatment for a variously diagnosed psychiatric illness since approximately 2005. And, as already noted, the current diagnosis is anxiety disorder resulting from the inservice assault. As the doctor specifically examined the Veteran to determine current psychiatric etiology and its origin, the Board places great probative value on the findings made. A medical opinion will be considered probative if it includes clear conclusions and supporting data with a reasoned analysis connecting the data and conclusions. A medical opinion that is a factually accurate, fully articulated, and based on sound reasoning carries significant weight. See Nieves-Rodriguez, 22 Vet. App. at 304; see also Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A] medical opinion ... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions."). Thus, with all resolution of reasonable doubt in the Veteran's favor, service connection for an acquired psychiatric disorder, diagnosed as anxiety disorder, is warranted. ORDER Entitlement to service connection for a respiratory disorder, claimed as asthma and the residuals of asbestos exposure, is denied. Entitlement to service connection for a skin disorder of the face and neck, to include as due to exposure to herbicides, is denied. Entitlement to service connection for an acquired psychiatric disorder, diagnosed as anxiety disorder, is granted. REMAND Initially, as to the claim for service connection for hearing loss, it is noted that the Board remanded the claim in September 2012 for obtainment of additional records and for a contemporaneous audiological examination. The examination was to be conducted primarily to address the Veteran's recent assertions that his hearing loss was due to his service-connected residuals of tonsillectomy. Review of the November 2012 audiological report is adequate to indicate that the Veteran continues to have left ear hearing impairment and normal hearing in the right ear. The examination is not adequate, however, in regards to whether current left ear hearing loss is proximately due to or whether it has been aggravated by his service-connected residuals of a tonsillectomy. The examiner did not address these questions. Instead, she provided the same opinion as the 2006 VA examination. Thus, remand is required to ensure compliance with the Board's September 2012 remand. See Stegall v. West, 11Vet. App. 268, 271 (1998). In Stegall, the Court held that "where... the remand orders of the Board... are not complied with, the Board itself errs in failing to insure compliance." Id. The Veteran is also seeking service connection for substance abuse. Disability compensation is not payable for disability due to the veteran's own willful misconduct, and the use of drugs to the point of addiction is considered willful misconduct. 38 C.F.R. § 3.301(a), (b), (c)(3) (2012). Where use of drugs or addiction to drugs results from a service-connected disability, however, it will not be considered of misconduct origin. 38 C.F.R. § 3.301(c)(3) (2012). Earlier in this decision, the Board granted service connection for anxiety disorder based on inservice personal assault. The Veteran's contentions as to the assault have always included report that he was forced to indulge in drugs. Moreover, in statements of record the Veteran has alluded to the fact that his post service use of drugs resulted from his psychiatric problems. While the claims files contain evidence regarding the Veteran's mental health and substance abuse history and treatment, the medical evidence does not adequately address the etiology of the Veteran's post service substance abuse. Therefore, further development of the medical evidence is required before the Board decides this claim. Accordingly, this case is REMANDED to the RO or the Appeals Management Center in Washington D.C. for the following actions. 1. Undertake appropriate development to obtain a copy of any pertinent, outstanding medical records. 2. After records and/or responses received from each contacted entity have been associated with the claims file, or, a reasonable time period for the Veteran's response has expired, the Veteran's entire claims file, to include a complete copy of this REMAND, should be forwarded to the physician who examined the Veteran in November 2012 (A.C., M.D.), for an addendum opinion. Based on a review of the claims file, the physician should provide an opinion, consistent with sound medical principles, as to whether it is at least as likely as not that current left ear hearing loss is proximately due to or has been aggravated by his service-connected residuals of a tonsillectomy. If the prior examiner is not available, or further examination of the Veteran is deemed warranted, the RO should arrange for the Veteran to undergo VA audiological examination by an appropriate physician, at a VA facility, to obtain a medical opinion addressing the questions posed above. The entire claims file, to include a complete copy of this REMAND, must be made available to the physician designated to examine the Veteran, and the report of examination should include discussion of the Veteran's documented medical history and assertions. All appropriate tests and studies should be accomplished (with all results made available to the examining physician prior to the complete of his or her report), and all clinical findings should be reported in detail. The physician should set forth all examination findings along with complete rationale for the conclusions reached. 3. Then, afford the Veteran for a VA by a psychologist or psychiatrist to determine the etiology of his substance abuse. Provide the examiner with the Veteran's claims file for review. After reviewing the claims files and examining the Veteran, the examiner should provide an opinion as to whether it is at least as likely as not (at least a 50 percent likelihood) that the Veteran's post service substance abuse was caused or permanently worsened by his anxiety disorder. The rationale for the opinion must be provided. If the examiner is unable to provide the required opinion, he or she should explain why the opinion cannot be provided. 4. Undertake any other indicated development. 5. Then, readjudicate the claims. If any benefit sought on appeal is not granted to the Veteran's satisfaction, issue a supplemental statement of the case (SSOC) and afford the Veteran and his representative the requisite opportunity to respond. Thereafter, return the case to the Board for appellate action. By this remand, the Board intimates no opinion as to the ultimate outcome of this case. No action is required of the Veteran until he is otherwise notified but he has the right to submit additional evidence and argument on the matter that the Board has remanded. See 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. 2012). ____________________________________________ FRANK J. FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs