Citation Nr: 1337837 Decision Date: 11/19/13 Archive Date: 12/06/13 DOCKET NO. 08-06 025 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for a low back disability. 2. Entitlement to service connection for hypertension, to include as secondary to a low back disability and/or right ankle disability. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Michael Sanford, Associate Counsel INTRODUCTION The Veteran had active duty service from January 1969 to January 1971. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Indianapolis, Indiana. In December 2011, the Board remanded the matters to the RO via the Appeals Management Center (AMC) in Washington, D.C., for additional development. The claims have now been returned to the Board for appellate disposition. FINDINGS OF FACT 1. A chronic low back disorder was not manifested during the Veteran's active military service or for many years thereafter; nor is there competent evidence relating any current low back disorder to service. 2. The Veteran did not experience any injury, disease, or chronic symptoms of hypertension in service. 3. Hypertension did not manifest to a compensable degree within one year of separation from service. 4. Symptoms of hypertension have not been continuous since service. 5. The Veteran's hypertension is not causally related to or permanently worsened by a service-connected right knee disability. CONCLUSIONS OF LAW 1. The Veteran does not have a low back disorder that is the result of disease or injury incurred in or aggravated by active military service, and arthritis may not be presumed to have been incurred therein. 38 U.S.C.A. §§ 1101, 1110, 1112, 1137, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2012). 2. Hypertension was not incurred in active service, is not presumed to have been incurred in service, and is not caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002); 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 VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The Veteran received notification prior to the initial unfavorable agency decision through a notice letter dated December 2006. The content of the notice letter fully complies with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) regarding VA's duty to notify. The Veteran was notified of the evidence not of record that was necessary to substantiate the claim, and was told that he needed to provide the names of the persons, agency, or company who had additional records to help decide his claim. He was also informed that VA would attempt to determine what additional information was needed to process his claim, and that VA would schedule a VA examination if appropriate, obtain VA medical records, obtain service records, and obtain private treatment reports as indicated. The duty to notify the Veteran was satisfied under the circumstances of this case. 38 U.S.C.A. § 5103 (West 2012 & Supp. 2012). VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2013). Service treatment records are associated with the claims file. To date, no further records outside the claims file have been identified by the Veteran. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran has been afforded VA examinations for both his low back disability and his hypertension. See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). The Board finds both examinations are adequate for the purposes of evaluating the Veteran's low back disability and hypertension, as both involved a review of the Veteran's pertinent medical history as well as a clinical examination of the Veteran, and provided a review of relevant symptomatology related to the disability on appeal. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Further, with respect to the Veteran's hypertension, the examiner considered whether that disability was caused by or aggravated by the Veteran's service-connected right ankle disability. The Board notes that a medical opinion on the issue of direct service connection for hypertension has not been obtained. Under McLendon v. Nicholson, 20 Vet. App. 79 (2006), in disability compensation claims, VA must provide a VA medical examination when there is: (1) competent evidence of a current disorder or persistent or recurrent symptoms of a disorder, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disorder or persistent or recurrent symptoms of a disorder may be associated with the Veteran's active military service, but (4) insufficient competent medical evidence on file for the VA Secretary to make a decision on the claim. Here, the Board finds that the competent and credible evidence, which reveals that the Veteran did not have hypertension or high blood pressure during his active military service and which does not reflect competent evidence showing a nexus between the active military service and the disorder, warrants the conclusion that a remand for an examination and/or opinion is not necessary to decide the claim. See 38 C.F.R. § 3.159(c)(4). As service and post-service treatment records provide no basis to grant this claim, and in fact provide evidence against this claim, the Board finds no basis for a VA medical opinion to be obtained on the issue of direct service connection for hypertension. Simply stated, the standards of McLendon are not met in this case. 20 Vet. App. at 79. The Board is also satisfied as to substantial compliance with its December 2011 remand directives. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268 (1998). This included attempting to ascertain whether there were outstanding treatment records relating to the Veteran's hypertension and low back condition. The Board also instructed that if those records were outstanding and they showed some connection between the Veteran's low back condition and his service or between the Veteran's hypertension and his right ankle disability or low back condition or his service, respectively, to afford the Veteran a VA examination addressing the etiology of those conditions. Attempts to obtain such records were made by way of a January 2012 letter to the Veteran. Further, as discussed above, the Veteran was afforded the requisite examinations for his hypertension and low back condition. Accordingly, the Board finds that there has been substantial compliance with its December 2011 remand directives. Id. In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issues on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A (West 2002); 38 C.F.R. § 3.159 (2012). Merits Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. In Timberlake v. Gober, 14 Vet. App. 122 (2000), the Court held, in pertinent part, that the law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. The Federal Circuit has also held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). 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. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant Service connection may be established for disability resulting from personal injury suffered or disease contracted in the line of duty in the active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. That an injury or disease occurred in service is not enough; there must be chronic disability resulting from that injury or disease. In order to prevail on the issue of service connection there must be competent evidence of a current disability; medical evidence, or in certain circumstances, lay evidence of in-service occurrence or aggravation of a disease or injury; and competent evidence of a nexus between an in-service injury or disease and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). In addition, where a veteran asserts entitlement to a chronic disability but there is insufficient evidence of a diagnosis in service, service connection may be established under 38 C.F.R. § 3.309(a) by demonstrating a continuity of symptomatology since service, but only if the chronic disability is listed under 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed Cir. 2013). In this instance, both arthritis and hypertension are listed as chronic disabilities under 38 C.F.R. § 3.309(a). As such, the Board will consider service connection for both those disabilities under the theory of continuity of symptomatology. Further, as both arthritis and hypertension are listed as chronic disabilities under 38 C.F.R. § 3.309(a), a showing that those disabilities, respectively, manifested to a degree of 10 percent within one year of the Veteran's separation from service will suffice to establish service connection on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309(a). The Board will address the Veteran's claims of service connection, in turn, below. I. Service Connection for a Low Back Condition. The Veteran claims that he is entitled to service connection for a low back disability. Specifically, the Veteran asserts that he injured his low back while in service during 1970 when he fell from atop a missile launcher that he was servicing. The evidence of record shows that the Veteran has several diagnosed disabilities of the low back. Indeed, the record shows that the Veteran was diagnosed with facet arthritis of the lumbar spine. See June 1995 Treatment Record. Further, there is evidence that the Veteran has been diagnosed with degenerative disc disease and laminectomy. See January 2012 VA Examination Report. Given those diagnoses, the first prong necessary for direct service connection, a diagnosed disability, is shown here. Further, the evidence of record shows that the Veteran did suffer an in-service fall from a missile launcher. The Veteran has asserted that this event happened. See January 2009 DRO Hearing Transcript. The Veteran recounted that he landed on his leg awkwardly and injured it during the fall. Id. The Veteran is competent to report such events that he experienced. Layno v. Brown, 6 Vet. App. 465, 471 (1994). The Board also finds the Veteran's report of this event credible, as the existence of the event is not rebutted by any piece of evidence. Accordingly, the second prong necessary for service connection, some in-service event, is shown here. The question, thus, is one of nexus. A review of the Veteran's service treatment records are absent findings or complaints of a low back disability. The Veteran's service treatment records do note that the Veteran suffered an ankle injury in December 1970, this is consistent with the Veteran's statement that he fell from a missile launcher in late 1970 and injured both his right ankle and low back. See December 1970 Chronological Record of Medical Care. The Board recognizes that the Veteran's separation examination was conducted prior to this incident, in October 1970. See October 1970 Report of Medical History. Nonetheless, the Veteran did not report, and no record shows, that the Veteran suffered some low back disability from December 1970 through the end of the Veteran's period of active service. Specifically, the Veteran did not report a low back disability as a result of his fall, despite reporting his right ankle injury that reportedly occurred alongside the low back disability during the Veteran's December 1970 fall from a missile launcher. The Board acknowledges the Veteran's assertion that his low back disability began in 1970, during service. See October 2006 Claim. However, while the Veteran is competent to report (1) symptoms observable to a layperson, e.g., difficulty breathing; (2) a diagnosis that is later confirmed by clinical findings; or (3) a contemporary diagnosis, he is not competent to independently render a medical diagnosis or opine as to the specific etiology of a condition. See Davidson v. Shinseki, 581 F.3d 1313 (2009). Without the requisite medical training necessary to render diagnoses, the Veteran is simply not competent to assert that his low back condition began in 1970. As such, the Board finds that the Veteran's low back disability did not manifest during his period of active service. As a result of the Veteran's January 2012 VA examination, the examiner tendered an opinion as to whether the Veteran's low back condition was etiologically related to his period of active service. The examiner concluded that it was less likely than not that the Veteran's low back disability was incurred in or caused by his period of active service. As rationale for that conclusion, the examiner noted the absence of any complaints of low back pain following his fall in service. The examiner also noted the length of time between the Veteran's fall and his first complaint of low back pain, some 24 years, despite the fact that the Veteran asserts that he has endured back pain since the fall. The examiner also expressly considered the fact that the Veteran's first complaint of low back pain occurred just nine months following an occupational incident where he suffered an apparent back injury. The Board finds this opinion probative as the examiner considered the Veteran's post-service treatment records, service treatment records, the contentions of the Veteran, and provided the Veteran with a comprehensive medical examination with respect to his low back disability. The Veteran has argued that his low back disability is the result of the fall he incurred during service. See October 2006 Claim ("I feel this condition is the direct result of my military service"). However, the Veteran's lay assertions of medical diagnosis or etiology cannot constitute evidence upon which to grant the claim for service connection. Latham v. Brown, 7 Vet. App. 359, 365 (1995). As such, the Veteran's assertion that his low back condition is the result of his in-service fall does not suffice to furnish the requisite etiological link needed to establish a claim for direct service connection. No etiological link exists between the Veteran's fall during service and his current low back disability. Indeed, on one hand, the January 2012 VA examiner concluded that the Veteran's low back condition was not the result of his in-service fall. On the other, there is no competent evidence showing that the Veteran's low back condition is etiologically related to his in-service fall. Accordingly, he is not entitled to direct service connection for a low back disability. Given the Veteran's diagnosis of facet arthritis, the Board has also considered whether service connection is warranted based on a showing of continuity of symptomatology. The Veteran himself, during a hearing before a decision review officer (DRO), testified that he has had back pain ever since in fall from the missile launcher in December 1970. See January 2009 DRO Hearing Transcript. Further, the Veteran submitted a statement signed by V.P. and B.P., his longtime neighbors, in which they assert that the Veteran has had back problems ever since returning home from service. See January 2009 Statement of V.P. and B.P. Despite these statements, the record reveals a March 1995 VA treatment record that notes that the Veteran had only experienced low back pain for the prior two years. See March 1995 VA Treatment Record. Further, a June 1995 treatment record specifies that the Veteran's low back condition began approximately one year prior, when the Veteran was injured on the job. See June 1995 Treatment Record. Specifically, the record details that the Veteran was injured when he accidentally caught a 350 pound object. Id. The record goes on to note that that the Veteran was initially diagnosed with a shoulder strain, but he began experiencing low back pain after that initial diagnosis. Id. Where the Board encounters lay evidence, the Board is required to assess the competency and credibility of that evidence before assigning it weight. Generally, evidence will be deemed competent if that evidence is offered by an individual who has personal knowledge of the event that is being attested to. Layno v. Brown, 6 Vet. App. 465, 471 (1994). The Board is also charged with assessing the credibility, and therefore the probative value of proffered evidence of record in its whole. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); see also Elkins v. Gober, 229 F.3d 1369 (Fed. Cir. 2000). In determining whether statements and evidence submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511 (1995). The Board is not required to accept an appellant's uncorroborated account of his active service experiences. Wood v. Derwinski, 1 Vet. App. 190, 192 (1991). The Veteran is competent to report symptomatology observable to himself, like low back pain, as a lay person. Layno v. Brown, 6 Vet. App. 465, 471 (1994). Likewise V.P. and B.P., the Veteran's longtime neighbors, are competent to report the Veteran's complaints of back pain since his return from service. However, despite being competent to report and observe symptomatology does not automatically render those reports and observations credible. Indeed, in this instance, the Veteran and his neighbors' assertions of back pain since service is in conflict with those statements which the Veteran made while receiving treatment in March 1995 and June 1995. On one hand, the Veteran and his neighbors now claim that the Veteran has experienced back pain since 1971. On the other hand, in March 1995 the Veteran claimed that his back pain began sometime in the year or two before. See March 1995 VA Treatment Record. Around that time, the Veteran also related the onset of his back pain to accidentally catching a 350 pound object while at work. See June 1995 VA Treatment Record. Given those statements made for the purpose of medical treatment directly contradict those statements made in conjunction with the Veteran's claim for service connection, the statements made by the Veteran, V.P. and B.P., regarding the onset of symptomatology of back pain are not credible and, as such, the Board assigns those statements no probative weight. The Board concludes that service connection is not warranted on the basis of continuity of symptomatology as no competent and credible evidence shows that the Veteran has experienced a continuity of symptomatology relating to his low back disability. Finally, given the Veteran's diagnosis of facet arthritis, the Board has considered service connection on a presumptive basis. 38 C.F.R. §§ 3.307, 3.309(a). There is no competent evidence of record that the Veteran's low back disability manifested to a compensable degree within one year of his separation from service. As discussed above, the Veteran's contention that his low back condition began in 1970 is not competent. Moreover, the earliest competent and credible evidence of record showing the onset of the Veteran's low back disability is in 1995. The Veteran separated from service in 1971, some 24 years earlier. As such, service connection on a presumptive basis for the Veteran's low back disability is not warranted. The Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, the Veteran is not entitled to service connection for a low back condition. II. Service Connection for Hypertension, to Include as Secondary to a Low Back Condition and/or a Right Ankle Disability. The Veteran contends that he is entitled to service connection for hypertension. Specifically, the Veteran contends that his hypertension is secondary to his service-connected right ankle disability and/or his low back condition. The Board notes that the term hypertension means that the diastolic blood pressure is predominantly 90mm or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (2012). The Board will first address secondary service connection. Service connection may also be established if the evidence of record shows that a chronic disorder has been caused or aggravated by an already service-connected disability. 38 C.F.R. § 3.310 (2012); Allen v. Brown, 7 Vet. App. 439 (1995). The record reveals that the Veteran has been diagnosed with hypertension. The January 2012 VA examiner confirmed this diagnosis. See January 2012 VA Examination Report. Further, the record reveals that the Veteran is currently service-connected for a right ankle disability. The Veteran was service-connected for that disability by way of an August 2009 rating decision. However, as adjudicated above, the Veteran is not service connected for a low back condition. As such, the only means by which the Veteran may be awarded secondary service connection is by a showing that his hypertension is secondary to his service-connected right ankle disability, not any low back disability. See 38 C.F.R. § 3.310 (2012). With respect to service connection for hypertension as secondary to a service-connected right ankle disability, the evidence of record does not support a finding that the Veteran's hypertension has been caused or aggravated by his right ankle disability. Of particular importance is the report of the January 2012 VA examiner. That report includes the examiner's opinion, which states that the Veteran's hypertension is less likely than not due to or the result of the Veteran's service-connected right ankle disability. See January 2012 VA Examination Report. As rationale for that opinion, the examiner explained that the Veteran's hypertension is essential, meaning that it has no clear etiology. Id. The examiner further explained that while the pain associated with the Veteran's right ankle disability may have caused the Veteran's blood pressure to rise initially, the right ankle disability is not responsible for the Veteran's hypertension, nor did the right ankle disability permanently aggravate his hypertension. Id. The VA examiner reviewed the evidence in the claims folder, and provided a medical opinion that is supported by and consistent with the evidence of record. There is no positive evidence to the contrary of this opinion in the claims file. The treatment records do not provide contrary evidence. The Veteran has asserted that "[m]y physicians have told me that I suffer from [hypertension] because of all my pain that I suffer from with my right my right leg & low back condition." See October 2006 Claim. On its face, without more, this statement is insufficient to establish a connection between the Veteran's hypertension and his right ankle disability. Hearsay medical evidence, as transmitted by layperson, is of limited probative value. The connection between what a physician said and layperson's account of what he purportedly said is simply too attenuated and inherently unreliable to constitute medical evidence. Robinette v. Brown, 8 Vet. App. 69 (1995). Nonetheless, there is no medical evidence supporting the Veteran's assertion. Moreover, the January 2012 VA examiner considered the possibility that the Veteran's right ankle pain somehow contributed to his hypertension and expressly rejected that notion. See January 2012 VA Examination Report. As such, the Board affords the VA examiner's opinion on this matter more probative weight than the Veteran's unsupported secondhand account of the etiology of his hypertension. To the extent the Veteran himself contends that his current hypertension is related to his service-connected right ankle disability, the Board notes that the Veteran has not shown that he has specialized training sufficient to render an opinion as to the diagnosis or etiology of hypertension, as such requires medical expertise and testing to determine. Accordingly, his opinion that he his current hypertension is related to his right ankle disability is not competent medical evidence. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). The Board finds the objective medical records and the opinion of the January 2012 VA examiner are of greater probative value than the Veteran's lay assertions. As such, service connection for hypertension as secondary to a service-connected right ankle disability is not warranted. The Board will now address direct service connection. Regarding the first element of service connection (i.e., a current diagnosis), the Veteran was diagnosed with hypertension at the January 2012 VA examination. Thus, the Veteran has satisfied the first requirement of service connection. Regarding an in-service incurrence of this current disorder, the Veteran's service treatment records are silent for documentation of the disorder. The records reveal no complaints or treatment related to hypertension or high blood pressure. At his military separation examination in October 1970, the Veteran's blood pressure was 120/80. As discussed above, hypertension is defined as diastolic blood pressure predominantly 90mm or greater. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (2012). Thus, under the regulations, the Veteran's military separation blood pressure did not meet the criteria for hypertension. Regarding a nexus opinion, the Veteran's contentions notwithstanding, none of the VA physicians who have had occasion to evaluate or examine the Veteran, or anyone else for that matter, have attributed his hypertension directly to his active military service. Here, there is simply no supporting medical nexus evidence. As previously mentioned, the evidence of record does not establish that a VA medical opinion is required regarding the issue of direct service connection. The Board acknowledges the Veteran's statement that his hypertension began in 1971. See October 2006 Claim. To the extent that the Veteran is asserting that he had hypertension based on his own understanding of the condition, without a medical diagnosis, the Veteran is not competent to render such a diagnosis. See Routen v. Brown, 10 Vet. App. 183, 186 (1997) ("a layperson is generally not capable of opining on matters requiring medical knowledge"). To the extent that the Veteran is asserting that he was diagnosed with hypertension in 1971, the Veteran is competent to report such a diagnosis. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In that event, the Veteran's contention that he was diagnosed with hypertension in 1971 is not credible given his prior assertions. At a June 1998 VA examination, the Veteran explained to the examiner that he has suffered from hypertension since 1991, not 1971 as he contends now. Moreover, a March 1995 VA examination report notes that the Veteran has suffered from hypertension since 1991, not 1971. Thus, to the extent the Veteran is offering that he was diagnosed with hypertension 1971, given the internally inconsistent evidence from March 1995 and June 1998, the Board finds that evidence is not credible and affords that assertion no probative value. There is no further evidence showing that the Veteran has suffered from hypertension, or the symptoms of hypertension, since his separation from service. Thus, the Board finds that there is not sufficient evidence to support a finding of continuity of symptomatology for hypertension since the Veteran's separation from service. Finally, the Board finds that the Veteran is not entitled to presumptive service connection for his hypertension. As discussed above, the competent and credible evidence of record indicates that the earliest the Veteran was treated or diagnosed with hypertension was in 1991, some 20 years following the Veteran's separation from service. No diagnosis of hypertension was made within one year of the Veteran's separation from service. Thus, the presumption of service connection for chronic diseases does not apply. 38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. § 3.307(a), 3.309(a). The Board notes that under the provisions of 38 U.S.C.A. § 5107(b), the benefit of the doubt is to be resolved in the claimant's favor in cases where there is an approximate balance of positive and negative evidence in regard to a material issue. The preponderance of the evidence, however, is against the Veteran's claim and that doctrine is not applicable. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Thus, the Veteran's claim of entitlement to service connection hypertension, to include as secondary to the service-connected right ankle disability, is not warranted. ORDER Entitlement to service connection for a low back condition is denied. Entitlement to service connection for hypertension, to include as due to a low back condition and/or a right ankle disability, is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs