Citation Nr: 1048167 Decision Date: 12/28/10 Archive Date: 01/03/11 DOCKET NO. 09-26 955 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to service connection for asbestosis. 2. Entitlement to service connection for a low back disorder, claimed as lower back pain. REPRESENTATION Veteran represented by: California Department of Veterans Affairs ATTORNEY FOR THE BOARD William Alan Nelson II, Associate Counsel INTRODUCTION The Veteran served in the Army National Guard, which included active duty for training (ACDUTRA) from March 1965 to July 1965. The Veteran also had other unverified service in the California Army National Guard from February 1965 to February 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in July 2008 and October 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. The Veteran presented testimony before a Decision Review Officer (DRO) at the Oakland RO in December 2009. A transcript of that hearing is associated with the claims file. FINDINGS OF FACT 1. The Veteran was not exposed to asbestos in service. 2. The Veteran's asbestosis is related to post-service occupational exposure to asbestos. 3. The Veteran injured his low back while playing football in college in September 1965. 4. The Veteran did not sustain a low back injury in active service. 5. A low back disorder is not related to the Veteran's active service. CONCLUSION OF LAW 1. Asbestosis was not incurred in or aggravated by active duty service or ACDUTRA. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). 2. A low back disorder was not incurred in or aggravated by active duty service, ACDUTRA, or inactive duty for training service (INACDUTRA), and incurrence or aggravation during such service may not be presumed. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2010). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was recently removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. The notice included provisions for disability ratings and for the effective date of the claim. In a timely letter in April 2007, the RO provided notice to the Veteran regarding what information and evidence is needed to substantiate a claim for service connection as well as what information and evidence must be submitted by the Veteran, what evidence VA would obtain, what evidence he was expected to provide, and of what assistance the VA could provide the Veteran in obtaining this evidence. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes the Veteran's National Guard service records, post- service private treatment records, and the Veteran's statements. The Board acknowledges that the Veteran has not been afforded a VA medical examination specifically geared to the claimed disorders of a low back disorder and asbestosis. However, the Board finds that VA examinations are not necessary in order to decide the matter. Two pivotal Court cases exist that address the need for a VA examination. Those are Duenas v. Principi, 18 Vet. App. 512 (2004) and McLendon v. Nicholson, 20 Vet. App. 79 (2006). In McLendon, the Court held that in disability compensation claims, the Secretary must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurring symptoms of a disability, 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 disability or persistent recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the Secretary to make a decision on a claim. In Duenas, the Court held that a VA examination is necessary when the record: (1) Contains competent evidence that the Veteran has persistent or recurrent symptoms of the claimed disability and (2) indicate that those symptoms may be associated with his active military service. In this case, because the weight of the evidence demonstrates that the Veteran did not in fact sustain a low back injury in service, or otherwise show in-service disease of the back or an in-service event involving the low back, there is no duty to provide a VA medical examination. The weight of the evidence also demonstrates that the Veteran was not exposed to asbestos in service, or otherwise show in-service disease of the respiratory system. In this case, the service treatment records are devoid of any complaints, symptoms, or abnormal pathology indicative of the occurrence of a low back injury or chronic low back disability in service. Service treatment records are also negative for complaints, symptoms, diagnosis, or treatment of a respiratory condition. The Board finds that the weight of the evidence demonstrates no continuity of low back or asbestosis symptoms since service separation. Because there is no in- service injury or disease to which competent medical opinions could relate the current disabilities, there is no reasonable possibility that VA examinations or opinions could aid in substantiating the current claims for service connection for a low back disorder and asbestosis. See 38 U.S.C.A. § 5103A(a)(2) (West 2002) (VA "is not required to provide assistance to a claimant . . . if no reasonable possibility exists that such assistance would aid in substantiating the claim"); 38 C.F.R. § 3.159(d) (VA to discontinue assistance where there is "no reasonable possibility that further assistance would substantiate the claim"). The Board has considered the decision in Charles v. Principi, 16 Vet. App. 370, 374-75 (2002); however, in the absence of evidence of an in-service disease or injury, referral of this case to obtain an examination and/or an opinion as to the etiology of the Veteran's claimed disability would in essence place the examining physician in the role of a fact finder, would suggest reliance on an inaccurate history of occurrence of an in-service injury or disease, and could only result in a speculative opinion or purported opinion of no probative value. In other words, any medical opinion which purported to provide a nexus between the Veteran's claimed disability and his military service would necessarily be based on an inaccurate history regarding what occurred in service, so would be of no probative value. The U.S. Court of Appeals for Veterans Claims (Court) has held on a number of occasions that a medical opinion premised upon an unsubstantiated account of a claimant is of no probative value. See, e.g., Swann v. Brown, 5 Vet. App. 229, 233 (1993) (generally observing that a medical opinion premised upon an unsubstantiated account is of no probative value, and does not serve to verify the occurrences described); Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (the Board is not bound to accept a physician's opinion when it is based exclusively on the recitations of a claimant that have been previously rejected). The holding in Charles was clearly predicated on the existence of evidence of both in-service injury or event and a current diagnosis. Referral of this case for an examination or to obtain a medical opinion would be a useless act. The duty to assist by providing a VA examination or opinion is not invoked in this case because there is no reasonable possibility that such assistance would aid in substantiating the claim. See 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 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). The term "veteran" is defined in 38 U.S.C.A. § 101(2) as "a person who served in the active military, naval, or air service, and who was discharged or released therefrom under conditions other than dishonorable." The term "active military, naval, or air service" includes active duty, and "any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in line of duty." 38 U.S.C.A. § 101(24); 38 C.F.R. § 3.6(a); see Biggins v. Derwinski, 1 Vet. App. 474, 477-478 (1991). A member of the National Guard serves in the federal military only when formally called into the military service of the United States. At all other times, a member of the National Guard serves solely as a member of the State militia under the command of a state governor. To have basic eligibility as a veteran based on a period of duty as a member of a state Army National Guard, a National Guardsman must have been ordered into Federal service under 32 U.S.C.A. §§ 316, 502, 503, 504, 505. 38 C.F.R. § 3.6(c), (d). Allen v. Nicholson, 21 Vet. App. 54, 57 (2007) (citing Perpich v. Department of the Defense, 496 U.S. 334, 110 S.Ct. 2418). Hence, for the Veteran's service in the National Guard, only periods of federalized service, if any, are qualifying service for the purpose of VA compensation benefits. The Board acknowledges that Title 32 activation of National Guard personnel creates entitlement to federal pay and benefits "as though they were in federal service." 32 U.S.C.A. § 502(f); see CRS: Report of Congress, Operation Noble Eagle, Enduring Freedom, and Iraqi Freedom: Questions and Answers About U.S. Personnel, Compensation, and Force Structure (updated February 16, 2005), p. 3. The benefits do not extend to Title 38 Veterans' Benefits. The Board notes that "Title 32" status is not the same as "federal status." With Title 32 status the personnel remain under the control of the states, whereas control is with the Federal government with activation of National Guard personnel under 10 U.S.C. § 12304. National Guard troops are typically funded through their individual states, but the Title 32 designation permits the federal government to fully reimburse states for operations without taking over command responsibilities for National Guard personnel relief operations. In this case, while it is unclear whether the Veteran's National Guard service was federalized, assuming that it was, the Board will decide the merit of his claims for entitlement to service connection for a low back disorder. ACDUTRA is defined, in part, as "full-time duty in the Armed Forces performed by Reserves for training purposes." 38 U.S.C.A. § 101(22); 38 C.F.R. § 3.6(c). INACDUTRA is defined, in part, as duty, other than full-time duty, under sections 316, 502, 503, 504, or 505 of title 32 [U. S. Code] or the prior corresponding provisions of law. 38 U.S.C.A. § 101(23); 38 C.F.R. § 3.6(d). Thus, with respect to the Veteran's Army National Guard service, service connection may only be granted for disability resulting from disease or injury incurred or aggravated while performing ACDUTRA, or an injury incurred or aggravated while performing INACDUTRA. 38 U.S.C.A. §§ 101(24), 106, 1110; 38 C.F.R. §§ 3.6, 3.303, 3.304. Service connection is generally not legally merited when a disability incurred on INACDUTRA results from a disease process. See Brooks v. Brown, 5 Vet. App. 484, 487 (1993). Certain evidentiary presumptions, such as the presumption of sound condition at entrance to service, the presumption of aggravation during service of preexisting diseases or injuries which undergo an increase in severity during service, and the presumption of service incurrence for certain diseases which manifest themselves to a degree of disability of 10 percent or more within a specified time after separation from service--are provided by law to assist Veterans in establishing service connection for a disability or disabilities. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304(b), 3.306, 3.307, 3.309. The advantages of these evidentiary presumptions do not extend to those who claim service connection based on a period of ACDUTRA or INACDUTRA. Paulson v. Brown, 7 Vet. App. 466, 470-71 (1995) (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service- connected disabilities from that period); McManaway v. West, 13 Vet. App. 60, 67 (citing Paulson, 7 Vet. App. at 469-70, for the proposition that, "if a claim relates to period of [ACDUTRA], a disability must have manifested itself during that period; otherwise, the period does not qualify as active military service and claimant does not achieve Veteran status for purposes of that claim."). Thus, the Veteran in this case is not entitled to a presumption of sound condition at entrance onto a period of ACDUTRA or INACDUTRA, or to a presumption of aggravation during such period where evidence shows an increase in severity of a preexisting disease during such a period, or to a presumption of service incurrence or aggravation for certain diseases, which manifest themselves to a degree of 10 percent or more disabling within a year from the date of separation from service. This does not mean that service connection may not be established for a disability on a direct basis or based on aggravation, but rather that the Board must review the evidence relevant to issues of direct service connection or service connection based on aggravation under the preponderance-of-the-evidence standard, the usual standard of review employed by the Board. See Paulson, 7 Vet. App. at 469 (quoting Board decision stating that a finding of preservice existence (of a disability) must be supported by a preponderance of the evidence (for claims based on period of active duty for training or inactive duty for training)). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Service Connection for Asbestosis In order to establish service connection for a claimed disorder, generally 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. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The Veteran contends that he was exposed to asbestos during his military service, specifically as part of his work as cook and a rifleman. He contends that he currently has asbestosis because of this in-service exposure. There is no specific statutory guidance with regard to asbestos related claims, nor has the VA Secretary promulgated any regulations in regard to such claims. However, VA has issued a circular on asbestos-related diseases. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988) provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, § 7.21. In December 2005, M21-1, Part VI was rescinded and replaced with a new manual, M21-1MR, which contains the same asbestos-related information as M21-1, Part VI. The Court of Veterans Appeals (now the Court of Appeals for Veterans Claims and hereinafter the Court) has held that VA must analyze an appellant's claim to entitlement to service connection for asbestosis or asbestos-related disabilities under the administrative protocols under the DVB Circular guidelines. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). Subpart ii of M21-1MR Part IV, lists some of the major occupations involving exposure to asbestos including mining, milling, work in shipyards, insulation work, demolition of old buildings, carpentry and construction, manufacture and servicing of friction products such as clutch facings and brake linings, manufacture and installation of roofing and flooring materials, asbestos cement and pipe products, and military equipment. High exposure to respirable asbestos and a high prevalence of disease have been noted in insulation and shipyard workers, and this is significant considering that, during World War II, U.S. Navy veterans were exposed to chrysotile, amosite, and crocidolite that were used extensively in military ship construction. Furthermore, it was revealed that many of these shipyard workers had only recently come to medical attention because the latent period for asbestos-related diseases varies from 10 to 45 or more years between first exposure and development of disease. M21- 1MR, Part IV Subpart ii, Chapter 2, Section C, Topic 9, see also M21- 1MR Part IV, Subpart ii, Chapter 1, Section H, Topic 29. VA's Manual 21-1MR, Part IV, subpart ii, Chapter 2, Section C in essence acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). With respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Topic 29; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). The pertinent parts of the manual guidelines on service connection in asbestos-related cases are not substantive rules, and there is no presumption that a veteran was exposed to asbestos in service by reason of having served aboard a ship. Dyment v. West, 13 Vet. App. 141 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (Fed. Cir. 2002); VAOPGPREC 4-2000. For many asbestos related diseases, the latency period varies from ten to forty-five or more years between first exposure and development of disease. M21-1MR at IV.ii.2.C.9.d. The Board finds that the weight of the evidence demonstrates that the Veteran was not exposed to asbestos during active duty service. Hickson, 12 Vet. App. at 253 (holding that service connection requires medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury and medical evidence of a nexus between the claimed in- service disease or injury and the current disability). In various lay statements, the Veteran reported that he was exposed to asbestos during service; specifically, that he was exposed to asbestos while using asbestos gloves as a rifleman and using asbestos blankets as a cook to keep the stoves warm. The Veteran is competent to provide evidence about matters of which he has personal knowledge; for example, he is competent to report that he experienced an event during service or that he had certain symptoms. See Falzone v. Brown, 8 Vet. App. 398, 405-406 (1995); Layno v. Brown, 6 Vet. App. 465 (1994). Therefore, the Veteran is competent to testify that he was exposed to asbestos during service. However, the Board does not find the Veteran's statements regarding asbestos exposure in service to be credible. The Veteran's service treatment records are negative for asbestos- related disease or any mention of asbestos exposure. There is no credible evidence of the Veteran's claimed exposure. A May 1966 Report of Medical History notes the Veteran's usual occupation as an "asbestos worker"; however, this is a reference to his civilian occupation as an insulator, and is not a reference to in-service asbestos exposure. The service personnel records indicate the principal occupation was a cook. This occupation is not noted by VA as involving asbestos exposure. See VA Adjudication Procedure Manual M-21-1, part VI, para. 7.21(b). Thus, the Board finds that the Veteran's statements are not credible, are inconsistent with his service occupation, so are not sufficient to establish that he was exposed to asbestos during active duty service. Instead, the Board finds that the weight of the evidence demonstrates that the Veteran's asbestosis is related to many years of post-service occupational exposure to asbestos. In a November 2004 pulmonary evaluation, the Veteran reported that he has worked as an insulator since 1966. The Veteran reported that, as an insulator, he worked in shipyards, refineries, powerhouses, and on commercial construction, mixed asbestos mud, and applied asbestos insulation without using a respirator. The Veteran reported that his post-service civilian occupation of insulator has involved removing asbestos-containing fireproofing from pipes and ducts to insulate pipes, working alongside pipefitters removing asbestos insulation, and working alongside millwrights installing boilers and placing asbestos mud. There is no competent or credible evidence of record to indicate that the Veteran's current asbestosis is related to service or that the Veteran was exposed to asbestos in service. An August 2007 Medical-Legal Evaluation found that the Veteran had asbestos exposure while working after service as an insulator from 1966 to 1998. In the November 2004 private pulmonary evaluation, Dr. F.G. opined that the Veteran's current asbestosis was related to his (post-service) exposure to asbestos in the workplace. There is no competent evidence of record contrary to the medical opinion of Dr. F.G., nor is there any medical evidence indicating that the Veteran's current asbestosis is due to any other injury or disability. The Board acknowledges the Veteran's lay statements indicating his belief that his current pulmonary disorder is related to exposure to asbestos in service. To the extent that the Veteran contends that his currently diagnosed asbestosis is related to his active duty service, he is not competent to render such a medical nexus opinion regarding the more complex disabilities of asbestosis, disabilities that require specific clinical testing to even diagnose. See 38 C.F.R. § 3.159 (a)(1) (competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions). This is not a case in which the Veteran's lay beliefs alone can serve to establish an association between his asbestosis and his military service. Accordingly, the statements by the Veteran purporting to establish a medical link between his current disabilities and his military service are not competent on the complex medical question of nexus in this case. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (explaining that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). On the question of nexus of currently diagnosed asbestosis, the Board finds that the weight of the competent evidence demonstrates that the currently diagnosed asbestosis is not related to any in-service injury or disease; indeed, there is no in-service asbestos exposure to which the currently diagnosed asbestosis could be related by competent evidence. The Board places more probative weight on the opinion of Dr. F.G., who stated that "[The Veteran] has a disability that can be related to his exposures to asbestos in the workplace." As the Board has found, as there was in fact no in-service asbestos exposure, a lay opinion by the Veteran also is of no probative value in relating asbestosis to service. There is no credible evidence in support of the Veteran's assertion that he was exposed to asbestos during service. Moreover, the weight of the evidence shows that the Veteran has asbestosis, but that it developed as a result of post-service occupational exposure to asbestos. For these reasons, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for asbestosis, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection for Low Back Disorder The Veteran contends that he suffers from a low back disorder due to falling off of a truck while on weekend drill in the Army National Guard. He further contends that he has suffered from chronic back pain since service. The Veteran has stated he injured his back while playing football in college, but then aggravated the injury by falling off a truck while on weekend drill in the Army National Guard. See DRO Hearing Transcript at 9. The Veteran stated that he was thrown from the back of a two and a half ton truck in January or February of 1967and injured his back. Id. After a review of all the evidence of record, lay and medical, the Board finds that the weight of the evidence demonstrates that the Veteran did not sustain a low back injury in service. While the Veteran is competent to state that he had low back symptoms at any time, including in service, the Board finds that the Veteran's more recent assertions of in-service low back injury and continuous back symptoms since service, made in the context of the March 2007 claim for service connection (disability compensation) for low back disorder, are outweighed by the Veteran's own histories that he gave for treatment purposes and also statements attributing his back pain to a 1965 football injury not incurred in National Guard service. See Hayes v. Brown, 5 Vet. App. 60 (1993) (it is the responsibility of the Board to assess the credibility and weight to be given the evidence); Wood v. Derwinski, 1 Vet. App. 190 (1992). For example, the Veteran's recent statements of continuous post- service back symptoms are inconsistent with post-service treatment records. In a November 2004 Pulmonary Evaluation, there is no mention of a back injury incurred in service. An August 2007 Medical-Legal Evaluation reflects the Veteran's report of a fractured vertebra after a football injury in September 1965, but does not mention a back injury incurred in service. The histories presented during treatment do not include a mention of in-service low back injury or treatment of low back symptoms or disability. See Cromer v. Nicholson,19 Vet. App. 215 (2005) (upheld Board's denial of service connection and finding that the Veteran's recent post-service account of in-service events was not credible because the Veteran had previously given other histories and theories that did not mention the alleged in- service event, and first "came up with the story" years after service and in connection with the compensation claim). A May 1966 Report of Medical History noted the Veteran had worn a back brace and also noted an inability to perform certain motions due to a broken back in September 1965. This report evidences that the Veteran had a previous back injury, however, it is consistent with the September 1965 college football injury, rather than an injury incurred in service. Based on the weight of the evidence of record, the Veteran's low back injury was not incurred during his National Guard service. Also, the presumption of aggravation of a preexisting injury is inapplicable in this case, because the presumption does not apply to periods of ACDUTRA or INACDUTRA. Paulson, 7 Vet. App. at 470-71 (noting that the Board did not err in not applying presumptions of sound condition and aggravation to appellant's claim where he served only on ACDUTRA and had not established any service-connected disabilities from that period); Biggins v. Derwinski, 1 Vet. App. 474, 477-78 (1991). The Veteran has provided lay statements, including March 2007 letters from his spouse and a friend, stating that the Veteran has had back problems since service. However, the statements only reflect that the Veteran has back problems, not what caused the back problems or when they originated. Therefore, these statements are assigned little probative value as to the question of an in-service back injury. As the statements made to private physicians in August 2007 and November 2007, were made during the course of treatment, they are afforded greater probative weight than those more recent statements made in conjunction with the Veteran's March 2007 claim for disability compensation benefits and the lay statements provided by the Veteran. See Rucker, 10 Vet. App. 73 (observing that, although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate; statements made to physicians for the purposes of diagnosis and treatment are exceptionally trustworthy because the declarant has a strong motive to tell the truth in order to receive proper care); Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991); Pond v. West, 12 Vet.App. 341 (1991). The Veteran has also been inconsistent when reporting his alleged in-service back injury. In the March 2007 VA Form 21-526, the Veteran reported onset of his lower back pain in 1966. In the October 2008 Notice of Disagreement (NOD), the Veteran reported the back injury was incurred in late 1967 or the beginning of 1968. In the December 2009 DRO Hearing, the Veteran testified that the incident where he injured his back in service was in January or February of 1967. Caluza v. Brown, 7 Vet. App. 498, 511, 512 (1995), aff'd per curiam, 78 F.3d. 604 (Fed. Cir. 1996) (credibility can be affected by inconsistent statements, internal inconsistency of statements, inconsistency with other evidence of record, facial implausibility, bad character, interest, bias, self- interest, malingering, desire for monetary gain, and witness demeanor). The Veteran also testified that he was offered a medical discharge twice and was put on profile for his low back disorder and moved out of infantry to maintenance in the cook section. DRO Hearing Transcript at 9; see also October 2008 NOD. However, this is not documented in the Veteran's service records. The Board finds the Veteran's statements pertaining to the onset of his low back disorder to be not credible. Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the Veteran); see Shaw v. Principi, 3 Vet. App. 365 (1992). For these reasons, the Board finds that the lay and medical evidence that is of record weighs against the claim for service connection for a low back disorder, and outweighs the Veteran's more recent contentions regarding an in-service low back injury and post-service low back disorder symptoms. The Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for a low back disorder and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for asbestosis is denied. Service connection for a low back disorder is denied. ______________________________________ J. Parker Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs