Citation Nr: 0811662 Decision Date: 04/09/08 Archive Date: 04/23/08 DOCKET NO. 05-21 605 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUES 1. Whether new and material evidence has been received to reopen a claim of service connection for hypertension. 2. Whether new and material evidence has been received to reopen a claim of service connection for a low back disability. 3. Entitlement to service connection for a heart disorder, to include as secondary to hypertension. 4. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Sorisio, Associate Counsel INTRODUCTION The appellant is a veteran who served on active duty from January 1971 to April 1991. These matters are before the Board of Veterans' Appeals (Board) on appeal from April 2004 (back and heart condition), January 2006 (tinnitus), and September 2006 (hypertension) rating decisions of the St. Louis, Missouri Department of Veterans Affairs (VA) Regional Office (RO). In his July 2005 substantive appeal (back and heart condition), the veteran stated that he wanted a hearing before a Decision Review Officer (DRO). In a November 2005 statement, the veteran's representative indicated that the veteran wished to withdraw his hearing request. Although the RO reopened the claim of service connection for a low back disability in the March 2007 statement of the case (SOC), the question of whether new and material evidence has been received to reopen such claim must be addressed in the first instance by the Board because the issue goes to the Board's jurisdiction to reach the underlying claim and adjudicate it on a de novo basis. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996), aff'g 8 Vet. App. 1 (1995). If the Board finds that no such evidence has been offered, that is where the analysis must end; hence, what the RO may have determined in this regard is irrelevant. Jackson, 265 F.3d at 1369; Barnett, 83 F.3d at 1383. The Board has characterized the claim accordingly. The RO has treated the veteran's claim involving a heart condition as a claim to reopen. The Board notes that the veteran timely perfected an appeal of service connection for a heart condition by July 2005 VA Form 9. In a statement received on November 28, 2005, the veteran's representative indicated that the veteran wished to withdraw several claims, including the heart condition claim. However, in a letter received on November 30, 2005, the veteran's representative clarified that the veteran had informed his representative that he did not want to withdraw his claim of service connection for a heart condition. As the veteran's representative had almost immediately expressed the veteran's wish to continue this claim, it remained pending in appellate status and the April 2004 rating decision did not become final. Hence, the Board finds that this claim is not a claim to reopen and has characterized the issue accordingly. The veteran is not prejudiced by the Board affording him this broader standard of review. A January 2007 statement from the veteran raises the issues of service connection for a right knee disability and for a bilateral ankle condition. Since the veteran withdrew his previous appeals on these issues in a November 2005 statement, these are new claims which are referred to the RO for appropriate action. The issue of service connection for a heart condition is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if any further action on his part is required. FINDINGS OF FACT 1. A final rating decision in April 2004 denied service connection for hypertension essentially on the basis that such disability was not manifested in service or related to service. 2. Evidence received since the April 2004 rating decision does not tend to show that the veteran's hypertension is related to his service, does not relate to an unestablished fact necessary to substantiate the claim seeking service connection for hypertension, and does not raise a reasonable possibility of substantiating the claim. 3. A final rating decision in September 1999 declined to reopen a claim of service connection for a low back disability; the claim was originally denied (in September 1991) essentially on the basis that the veteran did not have a low back disability. 4. Evidence received since the September 1999 rating decision shows that the veteran has a low back disability that may be related to his service, relates to an unestablished fact necessary to substantiate the claim seeking service connection for a low back disability, and raises a reasonable possibility of substantiating the claim. 5. The veteran's current low back disability is not shown to be related to his service, including as due to injuries incurred and treatment received for back pain therein. 6. Tinnitus was not manifested in service, and any current tinnitus is not shown to be related to service or to any acoustic trauma therein. CONCLUSIONS OF LAW 1. Evidence received since the April 2004 rating decision is not new and material and the claim of service connection for hypertension may not be reopened. 38 U.S.C.A. §§ 5108, 7105 (West 2002); 38 C.F.R. § 3.156 (2007). 2. Evidence received since the September 1999 rating decision is new and material and the claim of service connection for a low back disability may be reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2007). 3. Service connection for a low back disability is not warranted. 38 U.S.C.A. § 1110, 1112, 1113, 1131, 5107 (West 2002); 38 C.F.R. § 3.102, 3.303, 3.307, 3.309 (2007). 4. Service connection for tinnitus is not warranted. 38 U.S.C.A. § 1110, 1131, 5107; 38 C.F.R. § 3.102, 3.303 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS A. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). The VCAA applies to the instant claims. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the claimant is expected to provide; and (4) must ask the claimant to provide any evidence in her or his possession that pertains to the claim in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). Prior to the September 2006 rating decision declining to reopen a claim of service connection for hypertension, the appellant was advised of VA's duties to notify and assist in the development of his appeal. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). An August 2006 letter instructed the appellant that, since his claim of service connection for hypertension had been subject to a previous final denial, in order for him to reopen his claim he needed to submit new and material evidence. Kent v. Nicholson, 20 Vet. App. 1 (2006). This letter explained what kind of evidence would be new and material, the basis of the previous denial, and what the evidence must show to substantiate a claim of service connection for hypertension. Id. He has had ample opportunity to respond and to supplement the record. As for the appeal to reopen a claim of service connection for a low back disability, inasmuch as the determination below constitutes a full grant of that portion of the claim, there is no reason to belabor the impact of the VCAA on this matter, since any error in notice content or timing is harmless. Regarding the underlying claim of service connection for a low back disability and the claim of service connection for tinnitus, the veteran was advised of VA's duties to notify and assist in the development of the claims prior to the initial adjudication of his claims. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). December 2003 (back) and October 2005 (tinnitus) letters explained the evidence necessary to substantiate his claims, the evidence VA was responsible for providing, and the evidence he was responsible for providing, and advised him to submit any evidence or provide any information he had regarding his claims. The Board notes that the December 2003 letter did not explicitly ask the veteran to provide "any evidence in [his] possession that pertains" to his claim of service connection for a low back disability. Nevertheless, the Board finds that he has essentially been notified of the need to provide such evidence, since this letter informed him that additional information or evidence was needed to support his claim, and asked him to send the information or evidence to the RO. Thus, he has been adequately informed of the need to submit relevant evidence in his possession, has had ample opportunity to respond/ supplement the record, and is not prejudiced by any technical notice deficiency (including in timing) that may have occurred earlier in the process. Additionally, in compliance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), a March 2006 letter informed the veteran of disability rating and effective date criteria. The veteran's service medical records (SMRs) and pertinent treatment records have been secured. The RO arranged for VA examinations in June 2005 (back) and January 2006 (tinnitus). Regarding the hypertension claim, the duty to assist by arranging for a VA examination or obtaining a medical opinion does not attach until a previously denied claim is reopened. 38 C.F.R. § 3.159 (c)(4)(iii). The appellant has not identified any pertinent evidence that remains outstanding. Thus, VA's duty to assist is also met. Accordingly, the Board will address the merits of the claims. B. Legal Criteria, Factual Background, and Analysis General New and Material Evidence & Service Connection Criteria Generally, when a claim is disallowed, it may not be reopened and allowed, and a claim based on the same factual basis may not be considered. Id. However, a claim on which there is a final decision may be reopened if new and material evidence is submitted. 38 U.S.C.A. § 5108. The United States Court of Appeals for the Federal Circuit (Federal Circuit) recently held that the term "factual basis" is defined as the veteran's underlying disease or injury, rather than as symptoms of that disease or injury. Boggs v. Peake, No. 07-7137, slip op. at 7 (Fed. Cir. Mar. 26, 2008). Claims based on distinctly diagnosed diseases or injuries must be considered as separate and distinct claims. Id. at 11. 38 C.F.R. § 3.156(a), which defines "new and material evidence," was revised, effective for all claims to reopen filed on or after August 29, 2001. The instant claims to reopen were filed after that date and the new definition applies. "New" evidence means existing evidence not previously submitted to agency decisionmakers. "Material" evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. When determining whether a claim should be reopened, the credibility of the newly submitted evidence is to be presumed. Fortuck v. Principi, 17 Vet. App. 173, 179-80 (2003); Justus v. Principi, 3 Vet. App. 510 (1992). Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). In order to establish service connection for a claimed disability, there must be: (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Hickson v. West, 12 Vet. App. 247, 253 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Initially, the Board notes that it has reviewed all of the evidence in the veteran's claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence where appropriate and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Claims to Reopen Hypertension An April 2004 rating decision denied the veteran's claim of service connection for hypertension finding that it was not incurred in or related to his service. The veteran perfected an appeal of this decision; however, in a November 2005 statement, his representative stated that the veteran wished to withdraw his claim of service connection for hypertension. Accordingly, the appeal was withdrawn and the April 2004 rating decision became final. 38 U.S.C.A. § 7105. The Board notes that the claim denied in April 2004 and the current claim to reopen are based on the same factual basis as they are both claims involving the diagnosed disability of hypertension. See Boggs, slip op. at 7, 11. Evidence of record in April 2004 included the veteran's SMRs. On November 1990 retirement examination, the veteran's blood pressure was 140/90. In December 1990, he reported having high blood pressure. Other blood pressure readings taken during service include 128/88 (May 1979), 122/84 (January 1984), 100/80 (September 1987), and 100/70 (April 1989). On August 1991 VA examination, the veteran's blood pressure reading was 134/84. April 2004 VA treatment records show an assessment of hypertension and that the veteran was taking Metroprolol for blood pressure or heart. His blood pressure reading was 131/89. Evidence added to the record since April 2004 includes a May 2004 Family and Medical Leave Act (FMLA) doctor's certification that indicates that the veteran was taking blood pressure medication. April 2004 to November 2004 VA treatment records show diagnoses of hypertension. In May 2004 and November 2004 statements, the veteran's representative stated that he had a high blood pressure reading of 140/90 on his separation examination. He stated this was on the high side of normal and indicated the beginning of hypertension during service. In his January 2007 VA Form 9, Substantive Appeal, the veteran reported that he was unable to get a cardiologist to relate his hypertension to his service. Evidence received since April 2004 is new as it was not previously of record; however, it is not material as it does not tend to show that the veteran's hypertension was incurred in or related to his service. VA treatment records and the FMLA certification are merely redundant of evidence previously of record as they show diagnoses of hypertension and that the veteran was taking blood pressure medication. The veteran's representative has alleged that high blood pressure readings on service separation examination indicate the early signs of hypertension. However, this argument is based on evidence that was of record prior to April 2004 and does not suffice to raise a reasonable possibility of substantiating the veteran's claim. Untalan v. Nicholson, 20 Vet. App. 467 (2006) (finding that new arguments based on evidence already of record at the time of a previous decision do not constitute new and material evidence). It is also notable that while these statements are presumed credible in a claim to reopen, it is beyond the representative's or the veteran's competence as a layperson to opine regarding medical diagnosis or etiology. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Therefore, the new evidence does not relate to unestablished facts necessary to substantiate the claim that hypertension is related to the veteran's service, does not raise a reasonable possibility of substantiating the claim, and is not material. The preponderance of the evidence is against the veteran's claim to reopen and it must be denied. Low Back Disability Historically, a September 1991 rating decision denied the veteran's claim seeking service connection for a low back disability because the evidence did not show that he had a chronic back disability. The appellant initiated an appeal of this decision by an April 1992 notice of disagreement; however, he did not perfect an appeal by filing a substantive appeal in response to the May 1992 statement of the case. Hence, the September 1991 rating decision became final. 38 U.S.C.A. § 7105. The most recent final denial in this case was a September 1999 rating decision which declined to reopen the veteran's claim. He did not appeal this decision and it became final. Id. The current claim and the previous final denials were based on consideration of the same factual basis as they were premised upon consideration of the same in service injuries and treatment and were for a general claim of service connection for a low back disability as a disability had not been previously diagnosed. See Boggs, No. 07-7137, slip op. at 7, 11. Evidence of record in September 1999 included the veteran's SMRs. In September 1974, the veteran was treated for a swollen spot on his back after jumping into a lake in an obstacle course and hitting his back. The impression was that he had a pulled muscle. In July 1984, the veteran began seeking regular treatment for low back pain. July 1984 x-ray results were within normal limits; an ununited secondary ossification center involving the superior anterior border of the 5th lumbar vertebra was noted not to be clinically significant. In March 1987, the veteran was treated for back pain when his back went out after he bent over. September 1989 lumbar spine x-rays revealed no significant bony abnormality. Diagnoses during service include chronic low back pain and mechanical low back pain. On November 1990 retirement examination, the veteran reported having recurrent back pain. Clinical examination noted the back was abnormal and that the veteran had been treated for recurrent back pain; the diagnosis was mechanical low back pain. On August 1991 VA examination, the veteran reported having constant pain and spasms during the night. Physical examination revealed no evidence of spasms or point tenderness of the lumbar region. The diagnosis was chronic low back pain of undetermined etiology. It was noted the veteran reported two series of injuries during service. Lumbar spine x-rays reveal an old well-corticated corner fragment of the anterior-superior corner of the 5th vertebral body; there was no evidence of acute fracture or evidence of spondylolysis or spondylolisthesis. Evidence added to the record since September 1999 includes January to October 1992 Business and Industry Health Group private treatment records. These records reflect treatment for back pain after a work injury when the veteran was lifting a conveyor belt with another person and his back popped. January 1992 x-rays reveal spina bifida at S1, but an otherwise negative lumbar spine series. MRI results revealed a herniated nucleus pulposus at L4-5 and loss of signal within the disc space indicative of desiccation. November 1992 to July 1993 private treatment records from Dr. P. B. K. reveal treatment following the January 1992 work related back injury. A November 1992 letter states that the veteran reported his only prior experience with low back pain was some muscle soreness during service. He denied a history of any other back injuries. April 1993 to February 1994 private treatment records from Dr. B. M. A. reveal treatment for the veteran's January 1992 work related back injury. The veteran reported having no prior history of low back pain. The diagnosis was herniated nucleus pulposus at L4-5 and spina bifida; it was noted that his back pain was getting worse. A June 2004 VA treatment record shows the veteran and his wife had been involved in a motorcycle accident where they were rear ended and the bike flipped over. The veteran was experiencing muscle aches. Physical examination revealed good range of motion of the neck, back, and upper extremities with diffuse tenderness in those areas. The assessment was muscle strain secondary to accident. An August 2004 VA treatment record noted the veteran had chronic back pain and that his back pain had worsened recently after he lifted a microwave. On June 2005 VA examination, the veteran reported injuring his low back in the 1970s when he jumped off a training tower. He had a knot and went for evaluation. He reported having several more flares during service. At the time of the examination, he had been experiencing constant daily lumbar pain that radiated into his left hip. June 2005 lumbar spine x-rays reveal degenerative osteoarthritis of the lumbosacral spine. On physical examination, the veteran had limited range of motion because of pain with flexion and left lateral flexion. After reviewing the veteran's claims file, the examiner opined that degenerative changes to the lumbar spine were "less likely as not (50/50 probability) related to lumbar spasms while in service." She provided a rationale that the veteran had a back injury in 1992 during his employment and was off work for about three weeks. Additionally, he was involved in a motorcycle accident in 2004 and was off work for a day because of the pain. A November 2005 letter from chiropractor D. J. O. indicates that he reviewed the veteran's military medical records. The letter discusses the veteran's injury on an obstacle course and continuing treatment during service, noting that the veteran had a pattern of exacerbation and remission throughout 1984, 1985, 1987, 1990, and 1991. He explained that chronic sprain/strain injuries involve slow degeneration; that joint instability is classic in chronic sprain/strain conditions; and that over a period of many years the chronic sprain/strain devolves into a situation of degenerative joint disease and degenerative disc disease. He opined that given the veteran's "history of traumatic onset in 1984 with the 'slide for life' injury and the chronic nature of his exacerbation/remission (illustrated by his military medical records I have reviewed), it is my unequivocal opinion that his current disability is a direct result of his injury while serving in the military in 1984." The RO originally denied service connection for a low back disability based on a finding that the evidence did not show that he had a current chronic back disability. The evidence received since the September 1999 rating decision is new since it was not previously of record. It is also material because it relates to an unestablished fact necessary to substantiate the claim as there is competent evidence of current back disability (osteoarthritis). Additionally, the November 2005 letter from chiropractor D. J. O. tends to relate the veteran's injury and treatment in service to his current back disability. Given that service medical records show that the veteran injured his back in service, the evidence of current osteoarthritis of the lumbar spine and a nexus opinion raises a reasonable possibility of substantiating the claim. Accordingly, the evidence is new and material and the claim seeking service connection for a low back disability may be reopened. De Novo Review Certain chronic diseases (including arthritis) may be presumptively service connected if manifested to a compensable degree in the first postservice year. 38 U.S.C.A. §§ 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. The record does not contain any evidence that arthritis/ degenerative joint disease was manifested in the veteran's first postservice year. Consequently, service connection on a presumptive basis as a chronic disease is not warranted. The record includes both medical evidence that tends to support the veteran's claim of service connection for a low back disability and medical evidence that is against his claim. Evidence tending to support his claim consists of the November 2005 letter from D. J. O.; the evidence against his claim is comprised of the June 2005 VA examiner's opinion. When evaluating these opinions, the Board must analyze the credibility and probative value of the evidence, account for evidence which it finds to be persuasive or unpersuasive, and provide reasons for rejecting any evidence favorable to the appellant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). D. J. O.'s November 2005 letter reflects that he reviewed the veteran's military medical records prior to formulating his opinion. Based on this review, he concluded that the veteran's current low back disability was a direct result of his in service injury. While he indicates that he reviewed his military medical records, D. J. O. did not say whether or not he reviewed any post-service medical records, specifically records indicating intercurrent post-service injuries in January 1992 and June 2004. Moreover, it does not appear from his opinion that he was aware of any post- service injuries as he only discussed the in service injury and back pain treatment. It appears D. J. O. did not have a complete picture of the veteran's disability and any intercurrent injuries after service; hence, his opinion has limited probative value. The Board also notes that the letter consistently indicates that the veteran initially injured himself in 1984; however, his obstacle course injury actually occurred in 1974. Hence, the opinion is predicated on an inaccurate factual basis as the veteran's injury occurred 10 years prior to when D. J. O. believed that it occurred. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (finding that an opinion based on an inaccurate factual premise has no probative value). In contrast, the June 2005 VA examiner reviewed the veteran's SMRs along with all post-service medical records and physically examined the veteran. Her opinion reflects an awareness of the veteran's injury and treatment during service, along with her awareness of his 1992 post-service low back injury and subsequent 2004 motorcycle accident. After evaluating the entirety of this medical history, she concluded that his current low back disability is "less likely as not" related to his lumbar symptoms during service. She provided a rationale that the veteran experienced a significant back injury after service that required him to be off work for three weeks and a subsequent motorcycle accident that also required him to miss a day of work. Her physical examination report also provides a complete picture of the veteran's low back disability, including that pain limited the veteran's range of motion. See Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (finding that a medical opinion is adequate where it is based upon consideration of a veteran's prior medical history and describes the disability in sufficient detail so the Board can make a fully informed evaluation of the disability). In summary, greater weight may be placed on one medical professional's opinion over another's depending on factors such as reasoning employed by the medical professional, and whether or not and to what extent they review prior clinical records and other evidence. Gabrielson v. Brown, 7 Vet. App. 36 (1994). Here, in weighing the respective medical opinions, the June 2005 VA examiner's opinion reflects a full review of all medical evidence of record; reveals a more complete familiarity with the veteran's medical history; and is supported by a complete rationale. Accordingly, the Board finds that the opinion of D. J. O. is of less probative value than the opinion by the VA examiner and that the June 2005 opinion is persuasive of a conclusion that the veteran's current low back disability is not related to injuries incurred and treatment for back pain received during service. The preponderance of the evidence is against the veteran's claim, the benefit of the doubt doctrine does not apply, and the claim must be denied. Service Connection Tinnitus The record reveals the veteran experienced noise exposure during service as DD Form 214 reveals that his military specialties included infantryman and infantry drill sergeant. The record also establishes the veteran has a current disability as he reported on January 2006 VA examination that he had been experiencing constant bilateral tinnitus for about 10 to 15 years. What the veteran must still show to establish service connection for tinnitus is that the disability is related to noise exposure in service or otherwise to service. The evidence of record does not establish such a nexus. The January 2006 VA examiner reviewed the veteran's claims file, noting that there was no documentation or report of tinnitus during service, including during a November 1990 audiology examination prior to separation. He also noted that on August 1991 VA examination, which included evaluation of hearing loss, the veteran did not provide a history of tinnitus. The examiner provided the following opinion: The veteran has had a serious heart condition which left him in a coma for 30 days in 1996. He has smoked and utilized high caffeine now or in the past which is often linked to tinnitus. He reports approximately 3 cups of coffee (caffeine) daily at the present time. There are other causes of tinnitus besides noise exposure. Tinnitus is not specifically linked to events of acoustic trauma/noise exposure or military service. There is a family history of hearing loss suggesting other possible cochlear etiologies. Considering the lack of documentation of tinnitus in an otherwise detailed service medical record, his other medical history, and the non-specific onset of tinnitus reported 16 years after an initial compensation/pension evaluation for hearing impairment, it is not as likely as not that tinnitus occurred during or as a result of military service. The veteran's own statements relating his current tinnitus to noise exposure during service are not competent evidence, as he is a layperson, and lacks the training to opine regarding medical etiology. See Espiritu v. Derwinski, 2 Vet. App. 492, 495 (1992). Since the January 2006 opinion weighs against a finding of a nexus between service, to include noise exposure therein, and current tinnitus and there is no competent (medical) evidence to the contrary, the preponderance of the evidence is against the veteran's claim; the benefit of the doubt doctrine does not apply and the claim must be denied. ORDER The appeal to reopen a claim of service connection for a low back disability is granted; service connection for a low back disability is denied on de novo review. The appeal to reopen a claim of service connection for hypertension is denied. Service connection for tinnitus is denied. REMAND While it appears that the claim of secondary service connection for a heart disorder may lack legal merit (see decision above denying service connection for hypertension and 38 C.F.R. § 3.310), the claim of service connection for a heart disorder as directly related to the veteran's service remains viable, and requires further development. On service separation examination, physical examination and x-rays revealed that the veteran had vascular calcification of the aorta. Post-service August 1991 x-rays taken for VA examination purposes reveal minimal calcification of the abdominal aorta. A January 2005 letter from cardiologist P. R. C. shows that the veteran underwent a bypass surgery in 1996, after which he became critically ill and was in intensive care for several weeks. He also had a cardiac catheterization in 2004. The diagnosis was severe ischemic heart disease and class III angina. In August 2006, the veteran submitted textual evidence from Health Wise Wellness Diagnostic Center that states that calcification of the heart and vascular arteries is a marker for the presence of atherosclerotic plaque; that "[c]alcification elsewhere in the aorta . . . also provides additional definition of vascular disease outside the heart"; and that "[c]alcification of the aorta and other vascular segments are indicative of overall cardiovascular risk." The veteran has not been afforded a VA examination to assess the relationship, if any, of his current heart condition to service. Under 38 C.F.R. § 3.159(c)(4), a VA medical examination or opinion is necessary if the evidence of record: (A) contains competent evidence that the claimant has a current disability, or persistent or recurrent symptoms of disability; (B) establishes that the veteran suffered an event, injury or disease in service; and (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability, but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim. The United States Court of Appeals for Veterans Claims (Court) has held that the requirement that a disability "may be associated" with service is a "low threshold" standard. McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). Here, there is a current medical diagnosis of a heart condition, SMRs indicating vascular calcification of the aorta, and textual evidence indicating a general relationship between vascular calcification and cardiovascular disease, but insufficient evidence to determine whether the veteran's heart condition is related to his service, to include findings therein of vascular calcification of the aorta. Consequently, a VA examination to obtain a medical opinion is indicated. As noted, the record contains a January 2005 letter from cardiologist P. R. C.; however, the record does not contain any treatment records from this private physician. Since his letter indicates that follow up treatment and consultations were planned, there may be records outstanding that are pertinent to the veteran's claim. Any such records should be secured. It also appears the veteran has received VA treatment for his heart condition; the most recent VA records that have been associated with the claims file are from November 2004. Updated VA treatment records are constructively of record, may be pertinent to the veteran's claim, and should also be obtained on remand. Accordingly, the case is REMANDED for the following: 1. The RO should ask the veteran to identify any additional treatment or evaluation for his heart condition that is not already of record and to provide any releases necessary to obtain records of such treatment or evaluation. Of particular interest are treatment records from Dr. P. R. C. The RO should obtain complete records of all such treatment and evaluation from all sources identified by the veteran. The RO should update the record with any VA treatment records since November 2004. 2. The RO should arrange for the veteran to be examined by a cardiologist to determine the nature and etiology of his heart condition. The examiner must review the veteran's claims file in conjunction with the examination. The examiner should express an opinion regarding the diagnosis(es) of the veteran's heart condition, its likely etiology, and specifically whether it is at least as likely as not (a 50 percent or better possibility) that the diagnosed heart condition(s) is/are related to the veteran's service, to include in service x-ray findings of vascular calcification of the aorta. The examiner must explain the rationale for all opinions given; the explanation should specifically include discussion of the significance of the calcification findings in service. 3. The RO should then re-adjudicate the claim. If it remains denied, the RO should issue an appropriate supplemental statement of the case and give the veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. The appellant has the right to submit additional evidence and argument on the matter 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 for additional development or other appropriate action must be handled in an expeditious manner. ______________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs