Citation Nr: 0810073 Decision Date: 03/26/08 Archive Date: 04/09/08 DOCKET NO. 05-10 477 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to service connection for residuals of a back injury (claimed as an L5-S1 annular tear). 2. Entitlement to service connection, on a direct or secondary basis, for a mental disorder other than PTSD, including depression or an anxiety disorder. ATTORNEY FOR THE BOARD D. Schechter, Counsel INTRODUCTION The veteran had active service from November 13, 2002, to December 19, 2002. The appeal comes before the Board of Veterans' Appeals (Board) from decisions by the above Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the claims in January 2007. They now return for further appellate review. FINDINGS OF FACT 1. Clear and unmistakable evidence establishes that the veteran's a low back disorder existed prior to service and was not aggravated by service. 2. The veteran's low back disorder did not permanently increase in severity during service. 3. A mental disorder did not develop in service, did not develop and was not aggravated due to a service-connected disability, and is not otherwise related to service. CONCLUSIONS OF LAW 1. A low back disability was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1111, 1153 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304, 3.306(a) (2007). 2. A mental disorder was not incurred in or aggravated by service, nor is a mental disorder proximately due to or the result of service-connected disability, on either a causation or aggravation basis. 38 U.S.C.A. §§ 1101, 1110, (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.303, 3.304, 3.310 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007). 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 notice from VA 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). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (herein, the RO). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if complete notice is not provided until after the initial adjudication, such a timing error can be cured by subsequent complete VCAA notice, followed by readjudication of the claim, as in a statement of the case (SOC) or supplemental SOC (SSOC). Mayfield; Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In February 2003 the veteran was afforded a VCAA notice letter addressing her claims for service connection including for low back pain, prior to the appealed April 2003 RO rating action denying service connection for a low back disorder manifested by spina bifida and scoliosis. In November 2003 the veteran was afforded a further VCAA notice letter addressing her claim for service connection for an annular tear at L5-S1, as a recharacterization of her claimed low back condition. The RO denied that claim by an appealed February 2004 rating action. In May 2004 the veteran was afforded a VCAA notice letter addressing her claims including for both depression and residuals of low back injury (annular tear at L5-S1). The RO thereafter, in a September 2004 rating action, initially adjudicated the psychiatric disorder claim as one for a mental condition including depression and anxiety, with that recharacterization based on statements and medical records received following the May 2004 VCAA notice letter. These February 2003, November 2003, and May 2004 VCAA notice letters - all issued prior to the RO's initial adjudication of the appealed claims for service connection for residuals of a back injury, and for service connection for a mental disorder, to include depression and anxiety, other than PTSD - informed the veteran of VA's duty to assist her in substantiating her claims under the VCAA, and the effect of this duty upon her claims. These letters satisfied all four notice requirements of the VCAA, and addressed the evidence required to support the claims for service connection herein adjudicated, with the exception of the subsequently developed additional teory of entitlement, namely secondary service connection for the claimed mental disorder, to include depression and anxiety, other than PTSD. The letters addressed VCAA notice and development assistance requirements. They also informed what evidence VA would seek to provide and what evidence the veteran was expected to provide. Also by these letters, the veteran was requested to submit pertinent clinical evidence in her possession, in furtherance of her claims. In all but the February 2003 letter, she was also told that it was ultimately his responsibility to see that pertinent evidence not in Federal possession is obtained, and that shortcoming was remedied by the November 2003 and May 2004 letters and readjudication of the back injury claim in February 2004 and September 2004. In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the Court held that, upon receipt of an application for a service- connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim, and to provide the claimant with notice of what information and evidence not previously provided, if any, would assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection, and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. In the present case, although the April 2002 VCAA notice letter did not address the downstream issues of initial rating and effective date as pertinent to the appellant's claims, such errors are harmless because the appealed claims for service connection for residuals of back injury, and for service connection for mental disorder, to include depression and anxiety, other than PTSD, are herein denied. In addition, the veteran was afforded a March 2006 development letter which addressed the downstream issues of initial rating and effective date with regard to these two appealed claims for service connection, and that development letter was followed by an SSOC in November 2007. VA has a duty to assist the veteran in the development of the claims. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The above-noted VCAA notice letters in February 2003, November 2003, and May 2004, as well a subsequent VCAA notice letter in February 2007, requested that the veteran advise of any VA and/or private medical sources of evidence pertinent to her claims, and to provide necessary authorization to obtain those records. They also requested evidence and information about treatment after service, in support of the claims. The veteran provided authorization for certain private records which were then duly requested by the RO. VA and service medical records (SMRs) were obtained, and these together with private records received as a result of these requests, as well as those submitted by the veteran, were associated with the claims folder. Based on the veteran's reports of treatments and submitted records of treatment, the Board in January 2007 remanded to request that records be obtained from doctors Dunn and Rodriguez, as well as a February 1997 MRI report. The Board then also requested that the veteran be scheduled for a VA examination to address his claims for service connection. However, the RO duly sent the veteran a letter in April 2007 requesting authorization to obtain those private records, to which the veteran did not reply. The RO in May 2007 informed the veteran of the need for an additional VA examination, to be scheduled. The veteran failed to appear for scheduled VA examinations in June 2007 and August 2007, and failed to contact VA either to inform why she had failed to appear, or to reschedule an examination. The RO thus was unable to obtain the private medical records or the VA examinations requested by Board remand. The duty to assist in the development and adjudication of a claim is not a one-way street. Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996). If a veteran wishes help, she cannot passively wait for it in circumstances where she may or should have evidence that is essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). See Olson v. Principi, 3 Vet. App. 480, 483 (1992). Furthermore, while VA does have a duty to assist a veteran in the development of a claim, that duty is not limitless. In the normal course of events, it is the burden of the veteran (appellant) to keep VA apprised of her whereabouts. If she does not do so, there is no burden on the VA to "turn up heaven and earth" to find her. Hyson v. Brown, 5 Vet. App. 262 (1993). Accordingly, the Board finds that the duty to assist the veteran was here satisfactorily completed, and necessary development pursuant to the Board's January 2007 remand has been complied with, and is at an end. See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The veteran has advised of no additional private medical sources of pertinent treatment records for which she provided authorization to obtain those records. Hence, in that regard, the VCAA development assistance duty has been fulfilled. The veteran did submit private treatment records as well as statements by private physicians, and these were duly associated with the claims folders and considered in support of the veteran's claims. All records received were associated with the claims folders, and the veteran was duly informed, including by the VCAA letters, the appealed April 2003, February 2004, and September 2004 rating actions, the January 2007 Board decision and remand, a January 2005 SOC, and a November 2007 SSOC, of records obtained in furtherance of his claims, and, including by implication, of records not obtained. The veteran was adequately informed of the importance of obtaining all relevant records. The veteran has not identified, and the record does not otherwise indicate, any additional existing evidence presenting a reasonable possibility of furthering the appealed claims. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claims. 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); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). The veteran was also duly afforded a March 2003 VA examination addressing his claimed back injury residuals. As discussed, the veteran was scheduled for additional examinations in June 2007 and August 2007, but failed to appear for these examinations. When entitlement to a benefit cannot be established without a current VA examination and a claimant, without good cause, fails to report for such an examination, action shall be taken in accordance with 38 C.F.R. § 3.655(a),(b). When a claimant fails to report for an examination scheduled in conjunction with an original claim, the claim shall be rated based on the evidence of record. Id. Thus, pursuant to 38 C.F.R. § 3.655, the veteran's claim for service connection for residuals of back injury is to be adjudicated without further VA examination. The third prong of 38 C.F.R. § 3.159(c)(4)(I), requires a VA examination to address the question of etiology as related to service, when the veteran presents a claim for service connection and meets the low threshold requirement that she "indicate" that the claimed disability or symptoms may be associated with service. Locklear v. Nicholson, 20 Vet. App. 410 (2006) (citing McLendon v. Nicholson, 20 Vet. App. 79 (2006). However, the veteran's claim for service connection for a mental disorder does not require a VA examination prior to adjudication. In short, the veteran failed to meet the low threshold of indicating a link to service. The veteran's SMRs show no finding or treatment for mental disability, no mental treatment records indicate onset of a mental disability in service or proximate to service, and the submitted lay statements do support the development of a mental disorder in service, in essence because they do not indicate first-hand knowledge of the presence of symptoms of mental disability in service, and are not cognizable to support a causal link between service and current mental disabilities. Medical evidence is generally required to establish a medical diagnosis or to address questions of medical causation; lay assertions of medical status do not constitute competent medical evidence for these purposes. Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). However, lay statements may serve to support a claim for service connection by supporting the occurrence of lay-observable events or the presence of disability or symptoms of disability subject to lay observation. 38 C.F.R. § 3.303(a); Jandreau v. Nicholson, 492 F.3d 1372, 1376 (Fed. Cir. 2007); See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006) (addressing lay evidence as potentially competent to support presence of disability even where not corroborated by contemporaneous medical evidence). Here, the question of a causal link between events and experiences in service and mental disability post service is not within the ambit of lay capacities. Thus, there is no cognizable evidence which "indicates" a mental disorder in service or a link to service, so as to warrant an examination to address medical issues implicated for the claim on a direct basis. 38 C.F.R. § 3.159(c)(4)(I). The veteran was afforded appropriate opportunity to address the claims, and did so by written submissions. There is no indication that the veteran expressed a further desire to address her claims which has not been fulfilled. The veteran was also duly notified of the availability of representation, and that she may appoint an authorized representative to represent her in her claims and appeals. However, she has not chosen to do so. The U.S. Court of Appeals for the Federal Circuit has held that, if a claimant can demonstrate error in VCAA notice, such error should be presumed prejudicial. VA then bears the burden of rebutting the presumption, by showing that the essential fairness of the adjudication has not been affected because, for example, actual knowledge by the claimant cured the notice defect, a reasonable person would have understood what was needed, or the benefits sought cannot be granted as a matter of law. Sanders v. Nicholson, 487 F.3d 861 (Fed. Cir. 2007). Here, the claimant has not demonstrated any error in VCAA notice, and therefore the presumption of prejudicial error as to such notice does not arise in this case. Id. In summary, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). II. Claims for Service Connection Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110 (West 2002 & Supp. 2007); 38 C.F.R. § 3.303(a) (2007). To establish service connection for a disability, a claimant must submit (1) medical evidence of a current disability, (2) medical evidence, or in certain circumstances lay testimony, of in-service incurrence or aggravation of an injury or disease, and (3) medical evidence of a nexus between the current disability and the in-service disease or injury. See Pond v. West, 12 Vet. App. 341, 346 (1999). If a condition noted during service is not shown to be chronic, then generally a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also 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). Secondary service connection may be granted where the evidence shows that a chronic disability has been caused or aggravated by an already service-connected disability. 38 C.F.R. § 3.310. A veteran will be considered to have been in sound condition when examined, accepted, and enrolled for service, except as to defects, infirmities, or disorders noted at entrance into service, or where clear and unmistakable evidence demonstrates that an injury or disease existed prior thereto and was not aggravated by service. 38 U.S.C.A. § 1111. Only such conditions as are recorded in examination reports are to be considered as noted. 38 C.F.R. § 3.304(b). A pre-existing disability or disease will be considered to have been aggravated by active service when there is an increase in disability during service, unless there is clear and unmistakable evidence (obvious and manifest) that the increase in disability is due to the natural progress of the disability or disease. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(a), (b). Aggravation of a pre-existing condition may not be conceded where the disability underwent no increase in severity during service on the basis of all the evidence of record pertaining to the manifestations of the disability prior to, during, and subsequent to service. 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306(b). See Falzone v. Brown, 8 Vet. App. 398, 402 (1995) (holding that the presumption of aggravation created by section 3.306 applies only if there is an increase in severity during service). The Board notes that the language of the aforementioned regulation at 38 C.F.R. § 3.304(b) (2004) was amended during the pendency of this claim and appeal, effective May 4, 2005. See 70 Fed. Reg. 23,027-29 (May 4, 2005) (now codified at 38 C.F.R. § 3.304(b) (2007)). The amended regulation requires that VA, rather than the claimant, bear the burden of proving that the disability at issue pre-existed entry into service, and that the disability was not aggravated by service, before the presumption of soundness on entrance into active service may be rebutted. As noted, under 38 U.S.C.A. § 1111, the presumption of soundness may be rebutted by clear and unmistakable evidence that a disease or injury existed prior to service and was not aggravated therein. The burden of proof is upon VA to rebut the presumption by producing that clear and unmistakable evidence. See Kinnaman v. Principi, 4 Vet. App. 20, 27 (1993). The determination of whether there is clear and unmistakable evidence that a defect, infirmity, or disorder existed prior to service should be based upon "thorough analysis of the evidentiary showing and careful correlation of all material facts, with due regard to accepted medical principles pertaining to the history, manifestations, clinical course, and character of the particular injury or disease or residuals thereof." 38 C.F.R. § 3.304(b)(1). Where a law or regulation changes after a claim has been filed, but before the administrative and/or appeal process has been concluded, both the old and new versions must be considered. See VAOPGCPREC 7-2003 (Nov. 19, 2003); VAOPGCPREC 3-2000 (Apr. 10, 2000). The Board will therefore consider both the old and the new version of 38 C.F.R. § 3.304(b), noting that the amended regulation places a somewhat lesser burden upon the claimant. A lack of aggravation may be shown by establishing that there was no increase in disability during service or that any increase in disability was due to the natural progress of the pre-existing condition. 38 U.S.C.A. § 1153. However, if the presumption of soundness is not rebutted, the claim is one for service connection, not aggravation. Wagner v. Principi, 370 F.3d 1089, 1096 (Fed. Cir. 2004). A. Service Connection for Residuals of Back Injury The veteran here claims that she suffered an annular tear at L5-S1 in service, from which she suffers ongoing residual disability. She provides a narrative in support of her claim, that she fell while climbing stairs carrying a duffle bag, and other persons then fell on top of her. The veteran's service enlistment examination, in June 2002, failed to identify a low back disorder. Absent a finding of a low back disorder upon enlistment and entry into service, a presumption of soundness is established. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The veteran's DD Form 214 informs that she served from November 13, 2002, through December 19, 2002, and received an uncharacterized discharge. Service medical records reflect that during her first week of basic training she began experiencing low back and left hip pain. The initial screening note for treatment is dated November 23, 2002. The veteran reported at that screening that she had felt the pain for two days, and that there was no history of trauma. She was evaluated for the condition, and X-rays revealed a normal left hip, but at S1 both spina bifida and mild rotoscoliosis were noted. Those conditions were assessed as having existed prior to service and without aggravation in service. As noted, the veteran's service enlistment examination in June 2002 noted no spina bifida and no rotoscoliosis, or any other low back disorder. It appears that neither abnormality is readily detected without X-rays or other imaging The veteran's application for enlistment, dated in July 2002, specifically informed, in a paragraph which she initialed, that she was required to reveal all medical conditions. The application also specifically asked, in a question to which she circled "yes" in response, "Did you reveal your entire medical history during your physical examination?" The veteran has provided an October 2003 private medical report, by TD., M.D., an orthopedist, in which that physician notes the veteran's reported history of having sustained a low back injury in basic training in service, "resulting in an annular tear at L5-S1 which has been confirmed by an MRI study." However, MRI reports of record do not inform of an annular tear at L5-S1 in service. Rather, Dr. D, in an examination report dated in April 1997, noted that the veteran had grade 1 spondylolitic spondylolisthesis of L5/S1 as well as a spina bifida defect, and that an MRI then showed "decreased signal intensity at L5-S1." A January 1997 X-ray obtained from Dr. D's records, provided an assessment of mild lumbar scoliosis, and grade 1 spondylolisthesis of L5 on S1 secondary to pars defects at L5, and noted sclerosis at the defects consistent with healing pars defects. That X-ray report further noted the presence of a Schmorl's node endplate deformity involving the inferior aspects of T11 and T12. A February 1997 MRI report also noted conditions at T11-T12, as well as "minimal grade 1 anterior spondylolisthesis of L5 with respect to S1, with anterior displacement along the posterior spinal line of 3 to 4 millimeters. This is secondary to a bilateral spondylolysis defect involving the pars interarticularis at L5. . . . There is minimal posterior bulge of the disk margin of 3 to 4 millimeters, which is associated with spondylolisthesis (rolled-disk)." More recently, a report of an MRI obtained in April 2003 notes a very small, broad-based central L5-S1 disc protrusion, but again, no annular tear. Dr. D in the April 1997 report opined that the veteran's "current symptomatology was directly attributable to the work-related injury she describes occurring on January 13, 1997." That injury, as described in that report, consisted of bending over and lifting sheets while working as a hotel housekeeper. In records obtained of Dr. D's treatment of the veteran in 1997 for a low back condition, the physician assessed "[m]echanical back pain secondary to disruption L5-S1, with intermittent right lumbar radiculitis" (April 1997), and "lumbar strain with myofascitis and mechanical back pain, secondary to disc disruption L5-S1" (August 1997). A treating physical therapist in September 1997 provided a memorandum evaluation report to Dr. D, based on examination and review of X-ray findings, assessing status post lumbar strain, with mechanical low back pain, and pre-existing L5-S1 spondylolisthesis. Of note, Dr. D failed to report or address any pre-service low back injury or symptomatology in his October 2003 report, notwithstanding his documented history of treating the veteran in 1997, prior to service. Based on the presence of similar findings in 1997 as to those reported post-service, and the failure of Dr. Dn to note or address these pre- service low back conditions, the Board concludes that findings and conclusions of Dr. D in October 2003 are based on based on an inaccurate factual premise, and hence are not probative. Reonal v. Brown, 5 Vet. App. 458, 461 (1993). The veteran has provided several lay statements including from her parents, generally to the effect that she reported having injured herself in service and that she was considerably worse physically and/or mentally after service. However, none of those lay statements notes the veteran's documented pre-service history of scoliosis and spina bifida, as well as injury in 1997. Thus, while they may serve to support the existence of symptoms of disability, they do not serve to support any conclusions with regard to onset or aggravation of low back disability in service. Espiritu; cf. Jandreau. The veteran was afforded a VA examination in March 2003. The VA examiner noted her current complaints of ongoing pain since service, and current symptomatic findings including of localized pain and some radiating pain. However, that examiner noted the veteran's history of prior injury in 1997. The veteran reported at the examination that she had been involved in a motor vehicle accident in 1997, and had received treatment by Dr. D. The veteran did not report at the examination any history of injury while working as a hotel housekeeper in 1997. The March 2003 VA examiner opined, in essence, that the veteran had pre-existing disability prior to 1997, and that in both 1997 and during service in 2002 she experienced acute exacerbation of the underlying low back disability, without any permanent increase in severity of that underlying disability. A review of the record as a whole reveals a conflicting series of reports by the veteran of her history of low back injuries and disability: conflicting reported sources of injury in 1997 (in a motor vehicle accident versus while picking up sheets as a housekeeper); her failure to report prior low back disability and injury at her service enlistment examination in June 2002; her inaccurate statement as to the accuracy of her self-report of disabilities at that examination on her application for service in July 2002; her failure to report pre-service back injury or disability in her initial claim in January 2003 and subsequent statements in support of her claim; and her conflicting reports as to the events in service (no injury, as reported in service, versus falling while running with a full rucksack and duffle bag with others falling on top of her, as reported in a June 2004 statement). Based on these conflicting self-reported histories and failures to report histories, the Board considers the veteran's reports of injury in service and low back pain from service to the present to be unreliable and thus not supportive of her claim, particularly because the SMRs themselves contradict her account of injury in service. It is sufficient, for purposes of the present decision, to conclude that the veteran injured her low back in 1997, as documented by multiple treatments that year, and that she was during that pre-service interval also identified as having scoliosis and spina bifida (or, as then characterized, spondylolysis defect involving the pars interarticularis at L5, with minimal posterior disc bulge associated with spondylolisthesis). As the March 2003 VA examiner effectively concluded, additional chronic disability was not present in service, or currently. In summary, the merits of the October 2003 statements and conclusions by Dr. D have been undermined by his own pre- service medical records and opinions, and the credibility of the veteran's own statements regarding her medical history have been impeached by her multiple contradictory statements regarding her low back condition. The Board concludes that there is no credible evidence contrary to the March 2003 VA medical opinion that there was no permanent increase in severity in service of a low back disorder which pre-existed service. The Board finds that the documented pre-service symptomatic low back disability with injury and treatment in 1997, the service medical records supporting symptoms of low back within the first week of basic training without injury in service, and the VA examiner's opinion (not contradicted by any credible evidence) of absence of permanent aggravation in service of the veteran's low back disorder, all together constitute clear and unmistakable evidence both that the veteran's low back disorder existed prior to service and was not aggravated by service. The veteran's unreliable history of injury in service and symptoms since service, as provided to support her claim, do not detract from this finding. The Board accordingly concludes that the presumption of soundness upon entry into service, for the veteran's low back, is overcome in this case. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The presumption of soundness having been overcome, the Board must consider aggravation in service. Having concluded that clear and unmistakable evidence establishes that the veteran's low back disorder did not permanently increase in severity during service, with the weight of such evidence overwhelming contrary evidence, the preponderance of the evidence is against permanent increase in severity of the veteran's low back disorder in service. The Board accordingly concludes that the preponderance of the evidence is against the veteran's claim for service connection for residuals of a back injury, based on existence prior to service and absence of aggravation in service. 38 C.F.R. § 3.304. The preponderance of the evidence is against the claim for service connection for residuals of a back injury, and, therefore, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2006); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Service Connection for a Mental Disorder The veteran claims entitlement to service connection for a mental disorder, either on a direct basis or as secondary to residuals of low back injury. The veteran's service medical records show no findings or treatment for any mental disorder during her brief period of service, and no post-service medical record establishes a causal link between service and a current mental disorder. A June 2004 record by a private clinical psychologist provides a diagnosis of an anxiety disorder due to an L5- S1annular tear. However, the Board here denies service- connection for a low back disorder, and hence there is no service-connected disorder on which to basis a claim for secondary service connection for a mental disorder, and this June 2004 psychologist's opinion ultimately does not further the claim. The veteran is not service connected for any condition, and hence there is no service-connected condition on which to base a secondary service connection claim. 38 C.F.R. § 3.310. The veteran's own statements and other submitted lay statements ultimately cannot serve to support her claim. The question of the presence of a mental disorder and the etiology of a mental disorder are questions requiring medical expertise, beyond the purview of lay knowledge, and hence lay opinions on such issues cannot support the claim. Espiritu; cf. Jandreau. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for a mental disorder on both direct and secondary bases. 38 C.F.R. §§ 3.303, 3.310. Because the preponderance of the evidence is against the claim for service connection for a mental disorder, the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert. ORDER Service connection for residuals of a back injury is denied. Service connection for a mental disorder is denied. ________________________________ ANDREW J. MULLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs