BVA9504170 
DOCKET NO.  92-18 663     )       DATE
          )
          )

On appeal from the decision of the
Department of Veterans Affairs Regional Office in Boise, Idaho

THE ISSUE

Entitlement to an increased evaluation for lumbar disc disease
with history of lumbosacral strain, currently evaluated as
10 percent disabling.

Whether the Department of Veterans Affairs (VA) is entitled to
recoup 100 percent of the veteran's severance pay prior to
payment of disability compensation.

ATTORNEY FOR THE BOARD

R. E. Smith, Counsel

INTRODUCTION

The veteran had active military service from May 1967 to
April 1971 and from January 1977 to September 1988.

This appeal arises from a December 1990 rating decision by the
Boise, Idaho, Regional Office (RO) which, in pertinent part,
granted the veteran entitlement to service connection for a low
back disorder, rated 10 percent disabling effective from
May 1990.  The veteran submitted a notice of disagreement with
the 10 percent disability evaluation assigned by the RO.  A
statement of the case was issued in April 1991.  The substantive
appeal was received in December 1991.  This substantive appeal,
while sufficient with respect to the recoupment issue on appeal
was ambiguous as to whether or not the veteran sought to continue
his appeal with regard to the increased rating issue involving
the veteran's service-connected low back disorder.  Clarification
as to that matter was thus sought from the veteran by the RO in
January 1992.  A letter from the veteran, dated in January 1992,
indicated that he was satisfied with the disability evaluation
assigned for his service-connected disorders.  The RO, in a
letter dated in February 1992, advised the veteran, with respect
to his low back disorder, that no further action would be taken
on appeal and that his claim as to this issue was withdrawn.
Nevertheless, the veteran continued thereafter to assert in a
June 1992 letter to the RO and to this Board, with respect to
this issue, that the rating board was biased and had issued to
him an inaccurate compensation letter and statement of the case.

The appeal of the veteran's claim, relative to VA's right to
recover his severance pay, prior to payment of compensation, was
initially received by the Board in October 1992.  The appeal was
returned without action to the RO in June 1994 for processing of
a claim, pending at that time, based on the veteran's exposure to
herbicide agents.  This claim was subsequently denied by the RO
by a rating decision dated in July 1994.  The case was then
returned to the Board in August 1994 for further appellate
consideration of the issue involving the veteran's severance pay.
As will be noted below, the Board will defer consideration of
this issue, until the development requested below is
accomplished.

In December 1994, the Board sought clarification of the veteran's
intention regarding the issue of an increased evaluation for his
low back condition, in light of the assertions noted in his
June 1992 correspondence referenced above.  In a letter dated in
December 1994, the veteran made comments which the Board
construes as an indication that he wished to continue his appeal
as to this issue.  This matter will be further addressed below.

During the course of this appeal, the veteran has raised the
additional issues of entitlement to private chiropractic care on
a fee basis and entitlement to reimbursement of private medical
expenses incurred in connection with his service-connected back
disorder.  These issues, although clearly raised by the veteran,
do not appear to have been developed for appellate review.  They
are directed to the attention of the RO for referral to the
appropriate VA Medical Center having jurisdiction over these
claims.

For the veteran's benefit, the Board recognizes that he has
raised a number of concerns, primarily due to dissatisfaction
with how his claim has been handled.  Many of his concerns have
been addressed in correspondence to him from the RO and other
offices within the VA.  It should be emphasized that most of the
matters that he has raised are not within the jurisdiction of the
Board, whose principal function is to enter decisions on
questions presented on appeal, relating to benefits administered
by the VA.

REMAND

The veteran has made several contentions which primarily involve
the manner in which his claim has been handled by the RO.  The
veteran has specifically taken exception to what he perceives as
an inaccurate characterization of his back disorder by the RO and
maintains that the current characterization of this disorder does
not adequately describe his service-connected condition and the
symptoms related thereto.  He further argues that the RO has
minimized the pertinent medical findings relative to his back
disorder and essentially failed to adequately consider the
findings reported by his private chiropractor.  He indicates, in
this regard, that this failure to consider the findings of his
chiropractor is either the result of professional bias by the
medical profession against chiropractors, or results from VA
budget constraints.

These assertions of the veteran are particularly relevant in the
determination of whether the veteran has submitted a well-
grounded claim for an increased rating for his low back disorder,
within the meaning of 38 U.S.C.A. § 5107(a) (West 1991).  That
is, has he presented a claim which is not implausible?  The
veteran in this case has the initial burden of submitting
evidence sufficient to justify a belief by a fair and impartial
individual that his claim is well-grounded.  See Murphy v.
Derwinski, 1 Vet.App. 78, 81 (1990).  It is noted, in this
regard, that, in direct response to RO and later Board inquiry as
to whether he wished to pursue his claim for an increased rating,
he stated that he was not disagreeing with the rating percentage
of 10 percent assigned to this disorder.  Such statement alone
suggests that he has not submitted a well-grounded claim for an
increased rating.  On the other hand, the veteran has expressed
strong reservations about the characterization of his service-
connected disorder by the RO, claiming that the findings reported
by his chiropractor meet, at least partially, the requirements
for a 40 percent rating under the provisions of 38 C.F.R. Part 4,
Diagnostic Code 5295.  The Board notes further, that the veteran
is currently unrepresented, although he earlier made reference to
the fact that he was contacting various service organizations for
assistance with his appeal.  Under these circumstances, and to
afford the veteran every administrative consideration, the Board
finds that his claim is marginally well-grounded.

The VA has a statutory duty to assist the appellant in the
development of facts pertinent to his well-grounded claim.
38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. §§ 3.103(a), 3.159
(1993).  Such development may include ordering an examination of
the veteran.  Perez v. Derwinski, 2 Vet.App. 562 (1992).  Because
of the length of time which has expired since the last VA
examination, in 1990, and the furnishing by the veteran of
private treatment records from his chiropractor, the Board finds
that an up-to-date VA orthopedic and neurological examination
would be beneficial prior to appellate review.  Such examination
is necessary, in part, so that it can be determined whether all
disabling symptoms of the service-connection low back disorder
have been considered and to allay the veteran's concerns about
how his back disability is characterized.  Moreover, the veteran
himself has questioned the adequacy of the 1990 examination.

Accordingly, the case is REMANDED for the following actions:

1.  The veteran should be asked whether he
wishes to appoint a representative to
assist him in his appeal.  To this end, he
should be provided a list of accredited
service organizations.  In the event that
he does so, that organization or individual
should be given access to appropriate
records and the opportunity to submit
written argument on the issues developed
for appellate review.

2.  The veteran should also be asked to
submit the names and addresses of any
medical care providers, VA or private, who
have furnished treatment to him since 1991
for his service-connected low back
disorder.  These records should be obtained
and incorporated into the claims folder.

3.  After this development has been
accomplished, the veteran should be
provided VA orthopedic and neurological
examinations, in order to assess all
disabling symptoms and features of his
service-connected low back disorder,
currently characterized as lumbar disc
disease with history of lumbosacral strain.
Such examinations should include a full and
adequate description of all symptoms, range
of motion of the spine, the presence or
absence of neurological findings
appropriate to the site of the diseased
disc(s) and, if necessary, X-ray study.
The examiners are asked to comment on the
diagnosis rendered at the time of the last
VA examination in September 1990: "Probable
lumbar disc disease with significant
emotional overlay."  As well, their
attention is specifically directed to the
examination reports and treatment records
of the veteran's private chiropractor, Dr.
Dennis J. Downey.  It is imperative that
the examiners be given the opportunity to
review the veteran's claims folder, prior
to the examination.

4.  Thereafter the RO should again review
this case and determine whether the low
back disorder has been properly
characterized.  The disability should be
rated under all applicable diagnostic
codes, including Codes 5292, 5293, and
5295.  Consideration should also be given
to 38 C.F.R. §§ 4.10, 4.40 and to whether
the case should be referred through
official channels for extraschedular
consideration, under 38 C.F.R. § 3.321.

5.  In the event the veteran remains
dissatisfied with the action taken, he and
his representative (if any) should be
provided a supplemental statement of the
case, containing a recitation of the
pertinent evidence, a citation to the
relevant law and regulations, and reasons
for the actions taken.  A reasonable period
of time for response should be afforded.

Thereafter, the case should be returned to the Board for further
appellate review, if in order.  Consideration of the issue of
recoupment of severance pay is deferred, pending completion of
the development requested above.  The appellant need take no
action until he is notified.  The purposes of this remand are to
further develop the record and to afford the appellant due
process of law.  The Board intimates no opinion, either legal or
factual, as to the ultimate determinations warranted in this
case.

          (CONTINUED ON NEXT PAGE)

          N. R. ROBIN
          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) (1994).