Citation Nr: 1136880	
Decision Date: 09/30/11    Archive Date: 10/11/11

DOCKET NO.  08-05 992	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  Entitlement to service connection for a heart disorder claimed as a T wave abnormality.  

2.  Entitlement to an initial evaluation in excess of 50 percent for bilateral inferior altitudinal field defect.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

C. Bosely, Associate Counsel



INTRODUCTION

The Veteran had active service from June 1985 to June 2005.  He also served in the Reserve.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2005 rating decision of the Department of Veteran's Affairs (VA) Regional Office (RO) in Chicago, Illinois.  

The Veteran was scheduled to testify before a Veterans Law Judge in a hearing at the RO in April 2011, but he failed to appear.  He did not subsequently submit a motion to reschedule the hearing or present good cause for his failure to appear.  His request for hearing is, accordingly, deemed to have been withdrawn.  See 38 C.F.R. § 20.704(d).  

In a July 2010 rating decision, the RO increased the initial evaluation of the service-connected bilateral inferior altitudinal field defect from 20 percent to 50 percent, effective July 1, 2005.  Generally, a claimant is presumed to be seeking the maximum available rating for a service-connected disability, and where a higher rating is assignable, a claim for a higher rating will remain in appellate status even if a higher rating is awarded during the pendency of the appeal.  See AB v. Brown, 6 Vet. App. 35, 38 (1993).  Here, the Veteran did not specifically limit his appeal to an award of a fifty percent rating.  To the contrary, he wrote in his February 2008 VA Form 9 that he was "hoping for at least [a] 50%" rating for his service-connected bilateral inferior altitudinal field defect.  In other words, he expressly identified fifty percent as the minimum rating he was seeking.  Nor has he expressly withdrawn his appeal on the issue.  Thus, the initial rating claim remains in appellate status.  See id.; see also 38 C.F.R. § 20.204.  

The issue of entitlement to an initial evaluation in excess of 50 percent for bilateral inferior altitudinal field defect is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

FINDING OF FACT

A heart disorder, presently diagnosed as left ventricular hypertrophy, manifested during the Veteran's active duty service, and was chronic in service.


CONCLUSION OF LAW

By extending the benefit of the doubt to the Veteran, his heart disorder, manifested by left ventricular hypertrophy, is due to disease or injury that was incurred in or aggravated by active service.  38 U.S.C.A. §§ 1101, 1110, 1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2011).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009).  

Here, the disposition is fully favorable to the Veteran.  Therefore, the Board finds that all notification and development action necessary to render a fair decision on the claim of service connection has been accomplished.  

II.  Analysis

The Veteran contends that service connection is warranted for a heart disorder, claimed as T wave abnormality.  

Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).  Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service.  See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet .App. 247, 253 (1999); Caluza v. Brown, 7 Vet. App. 498 (1995). 

Also, certain chronic diseases, including cardiovascular-renal disease, endocarditis, and myocarditis, may be presumed to have been incurred during service if manifested to a compensable degree within one year of separation from active service.  38 U.S.C.A. §§ 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309.  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.  If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim.  38 C.F.R. § 3.303(b).  Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service.  38 C.F.R. § 3.303(d).  

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and continuity of his current symptomatology.  See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge).  

Lay evidence can also be competent and sufficient evidence of a diagnosis if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.  Davidson, 581 F.3d at 1316 (Fed.Cir.2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).  A lay person may speak to etiology in some limited circumstances in which nexus is obvious merely through observation, such as a fall leading to a broken leg.  Jandreau, 492 F.3d 1372, 1376-77.  

The Board's duty is to assess the credibility and weight of the evidence.  See Dalton v. Nicholson, 21 Vet. App. 23, 36 (2007); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991).

In the present case, the Board finds that by extending the Veteran the benefit of the doubt, service connection is warranted, for the following reasons. 

First, the Veteran's service treatment record (STR) includes results of a January 1992 electrocardiography test (ECG), which showed normal sinus rhythm and T wave abnormality, "consider anterolateral ischemia."  The impression was abnormal ECG.  A handwritten note indicates that this was abnormal due to inverted T in inferior and lateral lead, needs further evaluation.  

The Veteran underwent a physical examination on the same day in January 1992.  The examiner noted that a cardiology consultation was within normal limits.  The abnormal ECG was noted as "(cardiology consultation dtd March 20, 1992 found to be normal)-NCD // (w/u included TMST/ECHO WNL)."

Shortly thereafter, in March 1992, the Veteran underwent a further cardiology consultation.  After reviewing the ECG findings and a physical examination, the assessment was no evidence of cardiac disease.  

The Veteran underwent further physical examinations in March 1993, June 1997, and January 2001, which show no indication of a heart disorder.  Nonetheless, he underwent another ECG in September 2001.  Results at that time showed due to normal sinus rhythm; T wave abnormality consider inferior ischemia; T wave abnormality, consider anterolateral ischemia.  The impression was again abnormal ECG.

Another ECG in November 2001 also showed normal sinus rhythm; ST&T wave abnormality consider inferior ischemia; ST&T wave abnormality, consider anterolateral ischemia.  An echocardiogram (ECHO) performed on the same day showed normal left ventricular diastolic function; minimal and clinically insignificant mitral regurgitation; minimal tricuspid regurgitation.  The impression was normal ECHO.

The Veteran underwent a further ECG in May 2002.  It revealed normal sinus rhythm with sinus arrhythmia; ST & marked T wave abnormality, consider anterolateral ischemia.  

Then in March 2005, shortly before his service separation, but in connection with the present appeal, the Veteran underwent a combined discharge examination and VA heart examination.  The Veteran denied a history of coronary artery disease (CAD), heart attack, hospitalization for heart problems, and such symptoms as chest pains, angina, palpitations, shortness of breath, dyspnea on exertion (DOE), and orthopnea.  The Veteran informed the VA examiner that he was told of abnormal ECGs in the past with inverted T waves in 1992 and 2001.  He had no symptoms with exertion and was not on medication.  

The March 2005 VA examiner's clinical evaluation showed heart with normal sounds, no murmurs or clicks.  An ECG showed normal sinus rhythm, but abnormal ST-T changes compatible with left ventricular hypertrophy (LVH). The VA examiner's impression was obesity, and more likely than not the abnormal ECG was compatible with left ventricular hypertrophy, asymptomatic, class 1 (NYHA).  The VA examiner found that the Veteran had excellent exercise capacity with estimated energy levels at or above 12 to 15 METS.  

The Board finds, after careful consideration of this record, that the evidence is at least in a state of relative equipoise in showing that a chronic heart disorder, currently manifested by left ventricular hypertrophy, had its onset during the Veteran's active duty service.  Thus, service connection is warranted and the claim is granted.  See 38 C.F.R. § 3.303(b) (with chronic disease shown as such in service (or within the presumptive period under §3.307) so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes.); see also See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  


ORDER

Service connection for a heart disorder, manifested by left ventricular hypertrophy, is granted. 


REMAND

The Veteran's bilateral inferior altitudinal field defect has been rated as 50 percent disabling under the schedular criteria of 38 C.F.R. § 4.84a, Diagnostic Code 6080 (in effect prior to December 10, 2008), concerning impairment of field vision, throughout the entire initial rating period under appellate review.  

In connection with the appeal, he was afforded VA examinations in March 2005 and September 2007.  Both the March 2005 and September 2007 VA examinations included visual field testing, and the claims file currently contains the corresponding Goldmann visual field charts.  However, these charts do not show results using a 3 mm. white test object as required by 38 C.F.R. § 4.76 (in effect prior to December 10, 2008).  Thus, the examinations are not adequate for rating purposes.  

In July 2008, the same VA examiner who performed the September 2007 VA examination provided a Goldmann visual field chart showing results using a III/4e size test object.  This July 2008 addendum is also not adequate for rating purposes, however, as the provisions of 38 C.F.R. § 4.76 specifically require that "[n]ot less than 2 recordings, and when possible, 3 will be made," and the July 2008 addendum consists of only one recording.  Accordingly, a new VA examination is necessary.  See 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006); see also Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)).   

(The Board notes that the criteria for the evaluation of disabilities of the eyes were amended effective December 10, 2008, but these amended criteria govern cases only when the claim is filed on or after that date.  See 73 Fed. Reg. 66543 (November 10, 2008).  As the instant claim was filed prior to December 10, 2008, the rating criteria revised effective December 10, 2008, are not applicable.) 

Accordingly, the case is REMANDED for the following action:

1. After completing any initial development deemed warranted based upon a review of the entire record, to include associating any pertinent outstanding records with the claims folder, the RO should arrange for the Veteran to undergo a VA eye examination by an appropriate specialist to determine the nature and severity of his bilateral inferior altitudinal field defect.  The entire claims file, including a copy of this remand, must be made available to the examiner for review.  

Accordingly, the examiner is asked to review the pertinent evidence, including the Veteran's lay assertions, and undertake any indicated studies.  Then, based on the results of the examination, the examiner should provide a complete assessment of the current nature and severity of the Veteran's bilateral inferior altitudinal field defect.  

In doing so, the examiner is asked to include measurements of visual field testing. The usual perimetric methods should be employed, using a standard perimeter and 3 mm white test object (III/4e). At least 16 meridians 22 1/2 degrees apart must be charted for each eye.  The charts should be made a part of the report of examination. Not less than 2 recordings, and when possible, 3 should be made. Where available the examination for form field should be supplemented, when indicated, by the use of tangent screen or campimeter.

The VA examiner, in a printed (typewritten) report, should set forth all examination findings, along with a complete rationale for all opinions and conclusions reached.  Also, specific references to the Veteran's claims file, including all pertinent medical records and the Veteran's lay assertions should be provided, as appropriate.

2.  After completing all requested action, plus any additional notification and/or development warranted by the record, the RO should readjudicate the remanded claim in light of all pertinent evidence and legal authority.  If any benefit sought on appeal remains denied, the RO should furnish to the Veteran and his representative, if any, an appropriate Supplemental Statement of the Case (SSOC) that includes clear reasons and bases for all determinations, and affords the appropriate time period to respond.  

Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition.  

The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).




	(CONTINUED ON NEXT PAGE)

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).




______________________________________________
N. Rippel
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs