Citation Nr: 1325650 Decision Date: 08/13/13 Archive Date: 08/16/13 DOCKET NO. 12-29 483 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUE Entitlement to service connection for a thoracic and lumbar spine disability (back disability). REPRESENTATION Veteran represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL The Veteran and his son ATTORNEY FOR THE BOARD D. M. Ames, Counsel INTRODUCTION The Veteran had active service from June 1946 to October 1947. This matter comes before the Board of Veterans' Appeals (Board) on appeal from November 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Louisville, Kentucky. The rating decision reopened the Veteran's claim and denied it on its merits. The Veteran's claims file was subsequently transferred to the VA RO in Huntington, West Virginia. A review of the Virtual VA paperless claims processing system reveals additional VA medical records showing treatment for the claimed back disability. In the October 2012 Statement of the Case, the RO specifically stated that these were reviewed prior to the adjudication of the Veteran's claim. Further, this appeal has been remanded twice for development and Supplemental Statements of the Case (SSOC) were issued in April 2013 and July 2013. Therefore there is no prejudice to the Veteran in the Board's adjudication of his claim. The Veteran testified at a hearing in January 2013 before the undersigned. A copy of the transcript has been associated with the claims file. The record was held open for an additional 30 days to allow the Veteran time to submit additional private medical records. None were received. In March 2013, the Board reopened the Veteran's claim and remanded it for further development. The appeal was remanded a second time in May 2013 and it has now been returned to the Board. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The preponderance of the evidence reflects that the Veteran does not have a back disability that clearly and unmistakably existed prior to service and was not aggravated by service, that manifested in service or within one year thereafter, or a current back disability that is causally or etiologically related to his military service. CONCLUSION OF LAW A back disability was not incurred or aggravated in service, and may not be presumed to have been incurred in or aggravated by service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1153, 1154, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.306, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, and to indicate which information and evidence VA will obtain and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if VCAA notice was not provided prior to the initial adjudication of the claim or if provided, was inadequate or incomplete, such an error can be "cured" by providing any necessary notice and then readjudicating the claim, including in a Statement of the Case (SOC) or Supplemental Statement of the Case (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given ample opportunity to participate effectively in the adjudication of the claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication. Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. __ (2009). A preadjudication notice letter was issued in August 2011. This letter provided information regarding new and material evidence and did not provide information regarding how to substantiate a claim for service connection. It provided notice regarding the disability evaluation and effective date elements of a service connection claim. Dingess, 19 Vet. App. at 473. Although the Veteran was not issued a letter informing him of the first three elements of a service connection claim, in his October 2012 VA Form 9, the Veteran asserted that his back condition began during his period of service, indicating actual knowledge of the requirements of a service connection claim. At his January 2013 hearing, his representative stated that the Veteran injured his back in service, had treatment at that time, and had treatment for the condition since that time. Through his testimony and his representative's statements, the Veteran demonstrated that he had actual knowledge of the elements necessary to substantiate a service connection claim. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Although the Veteran was not provided a separate notice letter informing him of the elements of a claim for service connection on the basis of aggravation, the Board observes that he has received notice that the first element of a claim for service connection was evidence that he had an injury in military service or a disease that began in or was made worse during military service. Therefore, the Board finds that there was no prejudicial error in the notice provided and that VA has met its duty to notify the claimant per 38 U.S.C.A. § 5103(a). See Wilson v. Mansfield, 506 F.3d 1055 (Fed. Cir. 2007) ( "§ 5103(a) requires only that the VA give a claimant notice at the outset of the claims process of the information and evidence necessary to substantiate the claim, before the initial RO decision and in sufficient time to enable the claimant to submit relevant evidence. This notice may be generic in the sense that it need not identify evidence specific to the individual claimant's case (though it necessarily must be tailored to the specific nature of the Veteran's claim). It need not describe the VA's evaluation of the Veteran's particular claim."). His claim was then readjudicated in the April 2013 and July 2013 SSOCs. See Mayfield IV; see also Prickett, 20 Vet. App. at 376. VA has satisfied its duty to notify. Notwithstanding the error of not providing preadjudicative notice of the first three elements of a service connection claim, the Veteran has neither alleged nor proven that prejudice resulted from this error, and therefore, the Board determines that none resulted. See Shinseki v. Sanders, 129 S.Ct. 1696, 1704, 1705, 1706 (noting that "the party that seeks to have a judgment set aside because of an erroneous ruling carries the burden of showing that prejudice resulted"). The duty to assist provisions of the VCAA have been met. The claims file contains service treatment records (STRs), reports of post-service medical treatment, and the report of a VA examination in August 2011 and supplemental opinions in April 2013 and June 2013. Collectively, the examination and supplemental opinions were adequate because they were based on a thorough examination, a description of the Veteran's pertinent medical history, a complete review of the claims folder, and appropriate diagnostic tests. The examiner also provided rationales for the opinions provided. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007) (holding an examination is considered adequate when it is based on consideration of the appellant's prior medical history and examinations and also describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). The Veteran testified at a hearing in January 2013. During this hearing, the undersigned properly identified the issue on appeal, which at the time was whether new and material evidence had been submitted to reopen his claim for service connection. The Board suggested the submission of evidence that would assist the Veteran in substantiating claim. See Bryant v. Shinseki, 23 Vet. App. 488 (2010). Specifically, the undersigned asked the Veteran about where and when he received VA treatment, and whether he saw a private physician or chiropractor. The record was then left open for 30 days to provide the Veteran with an opportunity to submit additional evidence. This case was remanded in March 2013 so a supplemental medical opinion could be obtained and in May 2013 so that additional VA and private records could be obtained. Supplemental opinions were provided in April 2013 and June 2013. The May 2013 remand instructed the RO to obtain records from the Huntington VA Medical Center (VAMC) for the period from 1947 to 2001. In a June 2013 response to the RO's inquiry, the VAMC sent records from approximately 1988 to 2001 and stated, "[t]hese are all the records available." The RO informed the Veteran that it had requested these records. There was substantial compliance with the Board's directives. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). The Veteran has not made the RO or the Board aware of any additional evidence that must be obtained in order to fairly decide the appeal. He has been given ample opportunity to present evidence and argument in support of his claim. Pursuant to 38 C.F.R. § 3.655, all relevant evidence necessary for an equitable disposition of the Veteran's appeal of this issue has been obtained and the case is ready for appellate review. General due process considerations have been complied with by VA. See 38 C.F.R. § 3.103 (2012). Service Connection Claim Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military 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. If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity for certain diseases. 38 C.F.R. §§ 3.303(a),(b), 3.309(a); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 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). In order to establish service connection for the claimed disorder, 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, or in certain circumstances, lay evidence of a nexus between the claimed in-service disease or injury and the current disability. See 38 C.F.R. § 3.303; see also Hickson v. West, 12 Vet. App. 247, 253 (1999); Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). The requirement of a current disability is "satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim." See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Alternatively, the nexus requirement may be satisfied by evidence that a chronic disease subject to presumptive service connection (here, degenerative joint disease (DJD) of the thoracolumbar spine) manifested itself to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (finding that the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis herein focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (holding that the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a 3-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). The third step of this inquiry requires the Board to weigh the probative value of the proffered evidence in light of the entirety of the record. The standard of proof to be applied in decisions on claims for veterans' benefits is set forth in 38 U.S.C.A. § 5107 (West 2002). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). The Veteran's June 1946 enlistment examination noted that he had slight kyphosis that was not considered disqualifying. Although the examining physician did not consider it disqualifying, this preexisting condition was noted upon entry into service. Generally, a veteran is presumed in sound condition except for defects noted when examined and accepted for service. Clear and unmistakable evidence that the disability existed prior to service and was not aggravated by service will rebut the presumption of soundness. 38 U.S.C.A. § 1111 (West 2002); VAOPGCPREC 3-2003. A preexisting disease will be considered to have been aggravated by active service where there is an increase in disability during service, unless there is a specific finding that the increase in disability is due to the natural progression of the disease. 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). If, as here, a preexisting disorder is noted upon entry into service, the Veteran cannot bring a claim for service incurrence for that disorder, but he may bring a claim for service-connected aggravation of that disorder. Paulson v. Brown, 7 Vet. App. 466, 468 (1995). In that case, the provisions of 38 U.S.C.A § 1153 and 38 C.F.R. § 3.306 apply. Jensen v. Brown, 19 F.3d 1413, 1417 (Fed. Cir. 1994). A preexisting injury or disease will be considered to have been aggravated by active service where there is an increase in disability during such service, unless clear and unmistakable evidence shows that the increase in disability is due to the natural progress of the disease. See 38 U.S.C.A. § 1153 (West 2002); 38 C.F.R. § 3.306 (2012). "Clear and unmistakable evidence" is a more formidable evidentiary burden than the preponderance of the evidence standard. See Vanerson v. West, 12 Vet. App. 254, 258 (1999). It is an "onerous" evidentiary standard, requiring that the preexistence of a condition and the no-aggravation result be "undebatable." See Cotant v. West, 17 Vet. App. 116, 131 (2003) (citing Laposky v. Brown, 4 Vet. App. 331, 334 (1993)). As the Veteran's June 1946 entry examination report shows kyphosis upon entry into service, the presumption of soundness does not attach as to that specific condition. The Board must determine whether the preexisting condition was aggravated during active duty or if not, whether there is a current back disability that had its onset in service or is otherwise related to the Veteran's military service. The August 2011 VA examination did not address the theory of aggravation. In an April 2013 supplemental opinion, a VA examiner concluded that, "[i]t is clear that there was no thoracolumbar strain noted prior to his military service. He did not ever claim this was the case. This is clear and unmistakable." He elaborated that there was "no debate" about the aggravation of such an injury. He explained that the mild kyphosis noted on entry was not an injury but instead a structural observation in the opinion of the June 1946 examiner. Kyphosis was not noted upon separation from service. The VA examiner concluded that [i]t is a difference in opinion of that examiner," and that it "...certainly did not appear to worsen." The supplemental opinion provides probative evidence against an aggravation claim because it shows that the Veteran's back disability, which is different from kyphosis, did not clearly and unmistakably exist prior to service. The remaining VA and private medical evidence does not address whether the kyphosis documented upon entry was aggravated during service. The Veteran has not asserted that his preexisting kyphosis was aggravated by his period of active service. Rather, he contends that he injured his back weightlifting and that this was the onset of his back disability. Therefore, there is no lay evidence to support service connection based upon aggravation of a preexisting back disability. The Board finds that the preponderance of the evidence is against service connection for a back disability based upon the theory of aggravation. Therefore, the Board will address whether service connection is warranted on a direct basis. EF v. Derwinski, 1 Vet. App. 324, 326 (1991); Jones v. Principi, 3 Vet. App. 396, 399 (1992). The Veteran has been diagnosed with lumbago and DJD of the thoracolumbar spine, satisfying the first element of a service connection claim. Hickson, 12 Vet. App. at 253. The Veteran's STRs show that in February 1947, he was treated for low back pain with diathermy, satisfying the second element of a service connection claim. Id. However, the nexus element of a service connection claim is not satisfied. Id. The Veteran underwent a VA examination in August 2011. He stated that he injured his back while weightlifting. He reported that he was admitted to the hospital for this injury and was treated with heat and back manipulation. The examiner noted that the Veteran was treated with diathermy for back pain in February 1947, but that there was no other documentation of back symptomatology in the STRs. After separation from service, the Veteran reported working as a floor covering installer for 40 years, and that this occupation required working on his hands and knees. He stated that he went to a chiropractor but stopped treatment because it became too painful. The examiner found that the Veteran's back disability was unrelated to service. He explained that there was no evidence of a continuing low back condition in service; there was one instance of treatment. Following that, there was a 20 year gap in treatment. The examiner also stated that performing manual labor on his hands and knees for 40 years would be the most likely cause of ongoing back pain by the time the Veteran reached age 70 in 1998. The examiner relied in part on the absence of contemporaneous medical records; that portion of his rationale is not adequate. However, the remainder of his rationale for the negative opinion is adequate and provides probative evidence against the Veteran's claim. In April 2013, the same examiner provided a negative supplemental opinion. He reviewed the claims file, including the transcript of the January 2013 hearing. He noted that the Veteran received treatment for low back pain while he was hospitalized for febrile illness. There was no mention in the admission note that he had low back pain at the time of admission. The examiner noted that "[the Veteran] certainly did not injur[e] his back during his hospital stay by lifting weights." The examiner noted that the remainder of the STRs did not note back symptomatology. He stated that "...musculoskeletal complaints such as back pain are common with febrile illness. He had a headache as well at that time. This is also common with febrile illness." The examiner found that the timing of the low back pain was less likely to be due to an injury and instead it was more likely that it was the result of febrile illness. Further, the incurrence of back pain while in the hospital for febrile illness "does lend credence that the diathermy treatments were for the treatment of back pain related to the febrile illness and not an injury from weightlifting." The examiner found that the Veteran's lay assertion of continued pain seemed less likely because "...there was a complete physical exam[ination] done eight months later..." and no back pain was noted. The examiner noted "[i]t would seem logical to the examiner that if [the Veteran] had a significant problem with back pain from an injury it would have been brought to the attention of the medical examiner at the time of his admission to the hospital..." and not two days later when his symptoms from febrile illness were improving. Further, the examiner stated that it was less likely that the Veteran would have been returned to duty if he had a significant back problem. The examiner noted that medical literature showed that the majority of muscular back strains resolved over the first eight weeks after the injury, with or without medical treatment. Further, the examiner found that the Veteran was not a reliable historian. For example, he reported to the examiner that he received medication from a technician, but testified in January 2013 that he received medication from a doctor who treated him several times. The examiner stated that the Veteran's occupation as a carpet layer put "a great deal of stress" on his low back, and that his DJD of the thoracolumbar spine was worst at L5-S1, which is consistent with stress on the muscles surrounding and supporting the thoracolumbar spine. The examiner found that the Veteran's current back disability was the result of his post-service employment as a carpet layer. The April 2013 supplemental opinion provides probative evidence against the Veteran's claim. In June 2013, two additional supplemental opinions were rendered. The first one was provided by the same physician who examined the Veteran in August 2011 and provided the April 2013 supplemental opinion. In the first opinion, it was noted that the Veteran was treated for back pain in 1977, and that his back-related complaints were "obviously present" for an indeterminate time prior, and that the Veteran reported its onset in service. The examiner noted that the Veteran made this assertion "...around the time of his initial claim" for his back disability. The examiner also noted that the Veteran worked for 40 years installing floor covering and that this occupation was a "back stressful position," and that "if [the Veteran] did not have continuing pain it would have been unusual." The examiner found that the Veteran was capable of providing a medical history, but again stated that it was not an accurate history because "...his only hospital admission documented does not correlate with his history of being in the hospital for a back injury." The examiner reiterated that the Veteran was hospitalized in service for febrile illness. Because the history did not match the "factual evidence," the examiner found the Veteran's history to be inaccurate. He again concluded that the Veteran's back disability was caused by his post-service occupation installing floor coverings for 40 years. The second June 2013 supplemental opinion was provided by a different clinician. The examiner noted that the Veteran received diathermy in February 1947 for back pain, and explained that diathermy was a method of localized warming of the body tissues, and that because of the time period in which it was used, it was at least as likely as not a low dose electric current. The purpose of diathermy was to stimulate blood supply to soft tissues. The response to therapy was good, and the examiner reasoned that this meant the Veteran's back pain was a superficial, acute, transient soft tissue muscular strain rather than a bone or joint disruption, and was therefore less likely to be a proximal cause of the Veteran's current disability. Further, the examiner stated that the Veteran did not file a claim for his back condition for 30 years, and in the meantime worked in an occupation that involved manual labor. The June 2013 examiner agreed with the previous examiner that the Veteran's back disability was caused by his post-service occupation which required hours of low back stress each day for four decades. The June 2013 supplemental opinions provide probative evidence against the Veteran's claim. A March 1977 private medical record from Dr. R. A. noted that the Veteran had been diagnosed with spinal strain concurrent with cervothoracic and lumbosacral zones. Treatment was deemed necessary because "due to past injuries, even into military service years, weakening parts and places (spine), therefore, presenting vulnerabilities to stress." Dr. R. A.'s statement provides probative evidence in support of the Veteran's claim. However, it is afforded less probative weight than the findings of the VA examiners. Dr. R. A. did not mention the Veteran's post-service occupation as a floor covering installer, indicating that he did not take it into account or was not aware that the Veteran worked in a position that caused stress on his back. Further, Dr. R. A.'s statement that the Veteran had injuries in the military was not specific and it is not clear whether he had access to the Veteran's STRs, which show that he did not sustain a back injury in service, and instead had back pain related to febrile illness. The Veteran's post-service private and VA treatment records contain evidence showing treatment for a back problem as early as August 1989. Since that time, he has reported symptoms of or received treatment for a back disability. Although this evidence shows that the Veteran was treated for a back problems, it does not address whether it was linked to service. The Board finds that the findings of the VA examiners are more probative than the statement from Dr. R. A.; the VA examiners reviewed the Veteran's STRs which are integral to the claim because they show that the Veteran was hospitalized for febrile illness and not a back injury. Further, the examiners addressed whether the Veteran's in-service treatment for back pain was due to an injury or febrile illness. Lastly, they were aware of the Veteran's post-service occupation and provided well reasoned rationales for why the claimed back disability was related to the Veteran's work as a floor covering installer. The Veteran has stated that his current back disability began in service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), as to the specific issue in this case, whether his current DJD is the result of a claimed in-service injury or to another cause such as his post-service occupation, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (lay persons not competent to diagnose cancer). Further, his allegation has been investigated by competent medical examination and found not supportable; medical professionals have attributed his back disability to his post-service occupation instead of his in-service incidence of back pain. Id. The third element of a service connection claim is not satisfied. Hickson, 12 Vet. App. at 253. The Veteran provided lay evidence in support of his claim under the theory of continuity of symptomatology. His DJD is a chronic condition as set forth in 38 C.F.R. § 3.303(a). Therefore, the theory of continuity of symptomatology is applicable in this case. 38 C.F.R. § 3.303(a),(b); see also Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In his initial March 1977 claim for service connection for a back disability, he reported that it had its onset in early 1947. In May 2001, he stated that he experienced continuous symptoms since active service. At his January 2013 hearing, he testified that he hurt his back lifting weights in service. He stated he went to an aid station but was later hospitalized for his back injury and that he was treated for it more than once. In January 2013, the Veteran testified that he experienced continuity of symptoms since his in-service injury. The Veteran is competent to report observable symptoms such as back pain. Layno v. Brown, 6 Vet. App. 465 (1994). However, for the reasons discussed below, his statements regarding continuity of symptoms are not credible. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). First, the Veteran's statements are contradicted by the STRs, which are, aside from showing that he received diathermy for back pain while hospitalized for febrile illness, entirely devoid of any chronic back problems. His September 1947 separation examination noted a normal musculoskeletal system and no symptoms of a back disability were noted. The Veteran's pre-separation physical examination is particularly probative both as to his subjective reports and their resulting objective findings. They were generated with a view towards ascertaining his then-state of physical fitness and are akin to statements of diagnosis or treatment. Rucker v. Brown, 10 Vet. App. 67, 73(1997) (Observing that although formal rules of evidence do not apply before the Board, recourse to the Federal Rules of Evidence may be appropriate if it assists in the articulation of the reasons for the Board's decision); see also LILLY'S: AN INTRODUCTION TO THE LAW OF EVIDENCE, 2nd Ed. (1987), pp. 245-46 (many state jurisdictions, including the federal judiciary and Federal Rule 803(4), expand the hearsay exception for physical conditions to include statements of past physical condition on the rationale that statements made to physicians for purposes of diagnosis and treatment are exceptionally trustworthy since the declarant has a strong motive to tell the truth in order to receive proper care). Further, he filed a claim for service connection for dental problems in 1948 and did not mention his back disability at that time. He first filed his claim for a back condition in March 1977, thirty years after separation. Shaw v. Principi, 3 Vet. App. 365 (1992) (a veteran's delay in asserting a claim can constitute negative evidence that weighs against the claim). Lastly, the Veteran's reported history is not consistent. He reported to the VA examiner that he received medication from a medical technician. He testified in January 2013 that he was hospitalized specifically for a back injury sustained during weightlifting. His STRs contradict his statement, showing that instead he was hospitalized for febrile illness and while receiving treatment for it, he experienced some back pain. His credibility is diminished by his inconsistent statements and the fact that they are contradicted by his STRs. The Veteran's lay assertion that he experienced continuity of symptoms since his period of active service is not credible. Therefore it is not probative and does not support a finding of continuity of symptoms. 38 C.F.R. § 3.303(b). Finally, presumptive service connection is not warranted for DJD under 38 C.F.R. §§ 3.307 and 3.309. There is no evidence of record to show that DJD manifested to a compensable degree within one year of the Veteran's separation from service in October 1947. Therefore, presumptive service connection is not warranted. The preponderance of the evidence is against a finding that the Veteran's current back disability is due to any event or injury in service. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable and his claim is denied. See 38 U.S.C.A. § 5107(b) ; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). ORDER Service connection for a thoracic and lumbar spine disability is denied. ____________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs