BVA9500334 
DOCKET NO.  93-05 628     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Buffalo, New
York

THE ISSUES

1.  Entitlement to restoration of 40 percent and 10 percent
evaluations, respectively, for a low back disability and a hiatal
hernia.

2.  Whether recoupment of the veteran's Armed Forces severance
pay from his disability compensation constitutes the recovery of
a debt that would subject such recoupment to the provisions of
the bankruptcy code.

REPRESENTATION

Appellant represented by: Disabled American Veterans

ATTORNEY FOR THE BOARD

R. A. Caffery, Counsel

INTRODUCTION

The veteran served on active duty from September 1970 to October
1987.  In a February 1991 rating action, the Department of
Veterans Affairs (VA) Regional Office Buffalo, New York, reduced
the evaluation for the veteran's low back disability from
40 percent to 20 percent and reduced the evaluation for his
hiatal hernia from 10 percent to no percent.  The veteran
disagreed with those determinations.  He also appealed from a May
1992 decision by the regional office holding that recoupment of
his Armed Forces severance pay did not constitute the recovery of
a debt that would subject such recoupment to the provisions of
the bankruptcy code.

REMAND

By a rating dated in June 1988, service connection was
established for residuals of a lumbar laminectomy with left
sciatica and degenerative arthritis, rated 40 percent disabling
and a hiatal hernia, rated 10 percent disabling.

When the veteran was examined by the VA in May 1990, there were
lumbosacral tenderness and some limitation of motion of the
lumbar spine.  It was indicated that there was no muscle spasm.
On gastrointestinal examination, reference was made to barium
studies made in 1987 reportedly showing no dismotility in the
esophagus.  The study showed no evidence of esophageal reflux and
the stomach and duodenum were clear.  There was a small sliding
esophageal hiatus hernia.  However, a current gastrointestinal
X-ray study was not performed.

A report by Gerald S. Weinstein, M.D., received in May 1991,
reflected the veteran had been his patient since March 1991 and
that he had been sent to a medical center for tests which had
been positive for gastroesophageal reflux disease.  He stated
that the veteran was being maintained on Zantac, 150 milligrams
three times a day.

A June 1991 statement by Michael P. Owen, M.D., reflected that he
had been responsible for the care of the veteran since 1987.  He
stated that the veteran had undergone a left L4-L5 laminectomy
and diskectomy from which he showed a moderate degree of
improvement.  It was stated that the veteran had subsequently
developed a recurrent disc herniation at L4-L5 on the left that
had not been treated surgically.  It was indicated that the
veteran continued to have low back pain radiating into the left
leg on an intermittent basis.

In a November 1992 statement, the veteran indicated that he had
muscle spasm and low back pain all the time.  He related that he
had arthritis in his low back and had no relief from his back
condition.  He stated that he had numbness of his left leg and
ankle.  He also reported that he suffered from chest pain and
regurgitation.

In February 1993, the veteran's accredited representative
maintained that the reduction in the evaluations for the
veteran's low back condition and hiatal hernia was inappropriate
based on the May 1990 examination.  It was requested that the
veteran be afforded another examination.

In view of the foregoing matters and in order to afford the
veteran every consideration, findings of fact and conclusions of
law are being deferred pending a REMAND for the following action:

1.  The veteran should be afforded special
orthopedic and gastrointestinal
examinations in order to determine the
current nature and severity of his low back
disability and hiatal hernia.  All
indicated special studies, including an
X-ray study of the lumbar spine and a
gastrointestinal X-ray series should be
performed.  The claims file should be made
available to the examiners for review.

2.  The veteran's claim should then be
reviewed by the regional office.  If the
denial is continued, the veteran and his
representative should be sent a
supplemental statement of the case and be
afforded the appropriate time in which to
respond.

When the above action has been completed, the case should be
returned to the Board for further appellate consideration, if
otherwise in order.  No action is required of the veteran until
he receives further notice.

The purpose of this REMAND is to obtain clarifying information.
The Board intimates no opinion as to the disposition warranted in
this case pending completion of the requested action.

          JAMES R. ANTHONY
          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.

Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals.  This remand is in the nature of a
preliminary order and does not constitute a decision of the Board
on the merits of your appeal.  38 C.F.R. § 20.1100(b) (1993).