BVA9501644 
DOCKET NO.  93-06 771     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in San Diego,
California

THE ISSUE

Entitlement to service connection for a low back disorder.

REPRESENTATION

Appellant represented by: Military Order of the Purple
Heart

WITNESS AT HEARING ON APPEAL

The appellant

ATTORNEY FOR THE BOARD

Nancy R. Kegerreis, Associate Counsel

INTRODUCTION

The veteran served on active duty from October 1966 to July 1969.

This matter comes before the Board of Veterans' Appeals (Board)
from a March 1992 rating decision by the Department of Veterans'
Affairs (VA) Regional Office (RO) in San Diego, California, which
denied service connection for a low back disorder.

CONTENTIONS OF APPELLANT ON APPEAL

The veteran contends, essentially, that he sustained an injury to
his lower back in Vietnam in combat in 1968 and that his current
back disorder is a direct result of the injury in service.

DECISION OF THE BOARD

The Board, in accordance with the provisions of 38 U.S.C.A.
§ 7104 (West 1991), has reviewed and considered all of the
evidence and material of record in the veteran's claims file.
Based on its review of the relevant evidence in this matter, and
for the following reasons and bases, it is the decision of the
Board that the veteran has not met the initial burden of
submitting evidence sufficient to justify a belief by a fair and
impartial individual that his claim is well grounded.

FINDINGS OF FACT

1.  No objective evidence as to injury or trauma to the lower
back in service has been submitted.

2.  The veteran sustained a low back injury in June or July of
1974 several years after separation from service.

3.  There is no medical evidence linking the veteran's current
low back disorder to service or to an in-service event or
occurrence.

CONCLUSION OF LAW

The veteran has not submitted evidence of a well-grounded claim
for service connection for a low back disorder.
38 U.S.C.A. §§ 1110, 5107(a), 7105(d)(5) (West 1991);
38 C.F.R. § 3.303 (1993).

REASONS AND BASES FOR FINDINGS AND CONCLUSION

"To be well grounded, a claim 'need not be conclusive,'. . . but
must be accompanied by evidence that suggests more than a purely
speculative basis for granting entitlement to the requested
benefits."  Dixon v. Derwinski, 3 Vet.App. 261, 262-63 (1992).
There is no objective evidence that the veteran suffered from a
low back disorder during his term of service, although medical
records post-service reveal that he now has such a disorder.  The
Board does not find that the requisite evidence for a well-
grounded claim has been provided here.  A claim which is not well
grounded must be dismissed.  See Boeck v. Brown, 6
Vet.App. 14, 17 (1993).

Although during the course of his pre-induction physical
examination, dated in February 1966, the veteran checked
"recurrent back pain" as a disability on his Report of Medical
History, the examining physician did not find any objective
evidence of a back disorder or spinal abnormality, merely noting
on the examination form that the veteran had reported low back
pain after drinking cold water.  On his separation examination in
June 1969, the veteran checked "back trouble," but, again, the
examiner found no objective evidence of a back disorder and in
his elaboration of pertinent data included the notation that any
such claimed disorder had existed prior to entry.  The remainder
of the veteran's service medical records reveal no complaints of
or treatment for a low back disorder.  Although the veteran has
stated that he injured his back in combat, his Report of
Discharge (DD 214) does not show the receipt of the Purple Heart
for combat injuries.

The veteran filed his initial claim for service connection in
July 1969, following his separation from service, listing his
claims as hemorrhoids, shrapnel fragments in the left arm, and
left elbow pain.  No reference whatsoever was made at that time
to a back injury.  In July 1976, the veteran filed an additional
claim, stating that he had injured his lower back in June 1974,
resulting in a discectomy and laminectomy in March 1975.  He
stated that he had been disabled "since beginning of injury June
1974."

VA outpatient records, dating from February 1976 to August 1976,
noted a history of an extruded L4-5 disc, with laminectomy and
discectomy in the right L4-5 area in March 1975.  Preoperatively,
there had been weakness with dorsiflexion of the right great toe
and facet, a decrease in the right Achilles deep tendon reflexes,
and decreased sensation, L4-5.  Postoperatively, at the time of
discharge from the hospital, there had been early improvement
with increased strength and sensation, but subsequently the
veteran had had intermittent low back pain, with bilateral
radiation to the iliac crest and down the legs to the knees.
Conservative treatment with bed rest was found to be effective.
An examination while the veteran was standing, revealed scoliosis
in the thoracic area with convexity to the right.  The left
shoulder was higher and the left iliac crest lower, with a loss
of the lumbar lordotic curve.  Muscle spasm was noted and there
was no flexion at the lumbosacral spine with forward bending.
The veteran complained of pain in the lower lumbar region towards
the iliac crest to the legs.  Gait was normal, except for
scoliosis and pelvic tilt.  The veteran was able to walk on his
toes and heels.  While sitting, he could raise straight legs to
90 degrees without discomfort.  Straight leg raising while lying
down was to 80 degrees.  Patellar-tendon suspension (PTS) was
absent.  Dorsiflexion of the feet and toes was normal and
symmetrical.  Sensation of the lower extremities was intact to
pinprick and touch.  Diagnostic impressions were herniated
nucleus pulposus, L4-5, with motor/sensory loss; and (2) status
post right L4-5 laminectomy and discectomy.

A consultation by the Rehabilitation Medical Service in June 1976
reported a history of a low back injury in July 1974, with lumbar
laminectomy in March 1975.  The veteran had been receiving
physical therapy, but had not been seen by this clinic for one
year.  He continued to have low back pain.  Examination showed a
well-healed scar at the midline of the lumbosacral spine with
adjacent tenderness and firmness.  The impression was low back
pain subsequent to laminectomy.  A physical therapy regimen was
suggested.

In November 1976, the veteran was scheduled for a VA physical
examination.  Since he failed to report for the examination,
however, no rating action was undertaken.

In January 1992, the veteran submitted a third application for
compensation, this time describing the nature and history of his
disabilities as "low back trauma sustained in combat action
Cantho South Vietnam Feb 1968 resulting in two low back surgerys
in 1975 and 1990."

The RO reopened his claim and afforded him a hearing in August
1992.  The veteran testified that during service in Vietnam in
February 1968, an explosion from enemy artillery fire knocked him
to the ground, causing superficial burns on his lower back, a
broken upper left tooth, and a shrapnel wound to the upper left
arm.  He stated that he was not treated for a back injury at that
time because it was a burn injury.  When asked whether he had
been treated for back pain while in the service, he said that he
could not remember.  He believed that the first time he was
treated for a back disorder after service was in 1972, when his
back "locked up" on him.  Although he could not point to any
particular injury in 1974, the muscle spasms recurred, and he was
given a diagnosis of slipped discs, which eventually required
surgery.  Since then, he had had pain with sciatica in the lower
back area regularly and continuously.  The veteran testified also
that he had twice undergone surgery and that his doctors told him
he had scar tissue, bone spurs, and arthritis.  The pain ranged
from muscle spasms, to aching pains, to sharp jolts as though
from an electrical shock, which radiated to the legs and
sometimes to the feet.  He stated that his separation medical
examination showed that he had had low back pain in service.

In August 1992, the veteran underwent a VA disability evaluation
examination.  He reported that he had been injured in a shell
burst in Vietnam in August 1968, sustaining a burn and shrapnel
injury to his left side.  He stated that he still had some pain
occasionally in the left arm, but no other specific patho-
symptomology.  He also complained of occasional pain and aching
of the left flank, of no specific nature.  He did not take any
medication for the pain, and it was not incapacitating.  An
orthopedic examination was not conducted, but an examination of
the back for scars showed a linear scar 11.5 centimeters on the
lower back, which was well healed, asymptomatic, non-contractile,
and non-keloidal.  There was no limitation of movement from the
scar per se.

II.  Analysis

Service connection means, essentially, that the facts, as shown
by evidence, establish that a particular injury or disease
resulting in disability was contracted in line of duty coincident
with service in the Armed Forces, or if preexisting such service,
was aggravated therein.  38 U.S.C.A. § 1110 (West 1991).
Additionally, service connection may 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) (1993).  Each disorder for
which a veteran seeks service connection must be considered on
the basis of evidence, including that shown by his service
records, his medical records, and pertinent medical and lay
evidence.  38 C.F.R. § 3.303 (a) (1993).

In this appeal, the veteran is contending that he sustained an
injury during combat for which he believes he should be
compensated.  With respect to injuries or disabilities incurred
during combat, even in the absence of official records to
corroborate that claimed injury or disease was incurred therein,
the VA is required to accept as sufficient proof of service
connection satisfactory lay or other evidence, provided that
evidence is consistent with the circumstances, conditions, or
hardships of such service, notwithstanding the fact that there is
no official record of such incurrence.  See 38 U.S.C.A. § 1154(b)
(West 1991); 38 C.F.R. § 3.304(d) (1993).

On the other hand, the VA is not required to accept every bald
assertion made by a veteran as to service incurrence or
aggravation of a disability.  See Wood v. Derwinski, 1 Vet.App.
190 (1991).  The matter of service connection is a factual
determination which must be made by the VA based upon the
evidence in each individual case.  The law does not create a
presumption in favor of combat veterans.  See Smith v. Derwinski,
2 Vet.App. 137, 140 (1992).  Service-connection may be rebutted
by clear and convincing evidence to the contrary.  See
38 U.S.C.A. § 1154(b).

In reviewing the evidence, the Board notes initially that there
is no objective evidence of a back disorder in service and no
objective evidence of injuries incurred in combat.  Even if,
arguendo, the veteran did have a preexisting back disorder, as he
reported during his entrance and separation examinations, the
contemporaneous physical examinations do not reveal the presence
of such a disorder in service, nor do the clinical records in
service show treatment for back pain.  The Board must conclude,
therefore, that a chronic back disorder was not present during
service.

Moreover, it is the duty of the Board as the fact-finder to
determine the weight and credibility of the testimony.  See
Culver v. Derwinski, 3 Vet.App. 292, 297 (1992).  A review of the
veteran's statements as to the initial incurrence of his back
disability reveals a number of discrepancies.  His initial claim
in July 1969 does not refer at all to a back injury.  His July
1976 claim, however, mentions a back injury in June 1974, more
than five years after separation from service, and a consultation
from Rehabilitation Medical Service mentions a reported history
of an injury to the back in July 1974, thus corroborating the
fact that a back injury may have been incurred in the early
summer of 1974.  It was not until January 1992 that the veteran
stated that he injured his back in 1968 during combat.  The Board
notes the veteran's testimony at his hearing that the injury to
his back in combat was a "superficial burn," like a flash burn.
This is not the type of injury which would characteristically
result in a chronic spinal disorder such as the veteran has at
the present time.  Thus, the Board does not find the veteran's
statements as to the date of incurrence of his current back
disorder to be credible.

The veteran has also provided no link between the reported injury
in service and his current back disorder.  Where there is no
medical evidence of a claimed disorder during service and where
there is no medical evidence linking the claimed disorder to
service or to an in-service event or occurrence, the claim is not
well grounded.  See Rabideau v. Derwinski, 2 Vet.App. 141, 143
(1992) and Montgomery v. Brown, 4 Vet.App. 343 (1993).  Lay
assertions of medical causation cannot constitute evidence to
render a claim well grounded.  See Grottveit v. Brown,
5 Vet.App. 91, 93 (1993).  Therefore, the veteran's claim is not
well grounded and must be dismissed.

ORDER

The claim for service connection for a low back disorder is
dismissed.

          WARREN W. RICE, JR.
          Member, Board of Veterans' Appeals

The Board of Veterans' Appeals Administrative Procedures
Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___
(1994), permits a proceeding instituted before the Board to be
assigned to an individual member of the Board for a
determination.  This proceeding has been assigned to an
individual member of the Board.

NOTICE OF APPELLATE RIGHTS:  Under 38 U.S.C.A. § 7266 (West
1991), a decision of the Board of Veterans' Appeals granting less
than the complete benefit, or benefits, sought on appeal is
appealable to the United States Court of Veterans Appeals within
120 days from the date of mailing of notice of the decision,
provided that a Notice of Disagreement concerning an issue which
was before the Board was filed with the agency of original
jurisdiction on or after November 18, 1988.  Veterans' Judicial
Review Act, Pub. L. No. 100-687, § 402 (1988).  The date which
appears on the face of this decision constitutes the date of
mailing and the copy of this decision which you have received is
your notice of the action taken on your appeal by the Board of
Veterans' Appeals.