Citation Nr: 1336331	
Decision Date: 11/07/13    Archive Date: 11/13/13

DOCKET NO.  09-32 486	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Whether new and material evidence has been submitted to reopen the claim of service connection for residuals of a Baker's cyst of the right knee.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

J. Castillo, Associate Counsel
 
INTRODUCTION

The Veteran, who is the appellant, served on active duty from February 1973 to April 1973.

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in October 2008 of a Department of Veterans Affairs (VA) Regional Office (RO), which reopened the claim of service connection for residuals of a Baker's cyst of the right knee.

In July 2011, the Veteran appeared at a hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is in the Veteran's file.

In January 2012, the Board remanded the case for further development, which has been completed.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

The reopened claim of service connection is REMANDED to the RO via the Appeals Management Center in Washington, DC.


FINDINGS OF FACT

1.  In a decision of June 1975, the Board denied the claim of service connection for residuals of a Baker's cyst of the right knee on the basis that the Baker's cyst clearly and unmistakably preexisted service and was not aggravated by active service; the Veteran was notified of the decision and of his appellate rights but he did not appeal. 

2.  The additional evidence since the Board's decision in June 1975 relates to an unestablished fact necessary to substantiate the claim.


CONCLUSION OF LAW

The criteria to reopen the claim of service connection for residuals of a Baker's cyst of the right knee have been met.  38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. §§ 3.156, 20.1100 (2013).

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.

As the claim is reopened, which is the only part of the appeal decided, further discussion of VCAA compliance is not necessary.


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Claim to Reopen 

Legal Principles

The reopening of a claim of service connection which has been previously and finally disallowed requires that new and material evidence be presented since the last final disallowance of the claim.  38 U.S.C.A. § 5108. 

Whether or not the RO reopened a claim is not dispositive, as it is the Board's jurisdictional responsibility to consider whether it is proper for a claim to be reopened.  Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001).

As the Veteran's current claim to reopen was received in 2008, after the regulatory definition of new and material was last amended in August 2001, the current regulatory definition of new and material evidence applies.

New evidence means existing evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  

New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).

For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence, although not its weight, is to be presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).  The presumption of credibility is rebuttable when the evidentiary assertion is inherently incredible or when the fact asserted is beyond the competence of the person making the assertion.  King v. Brown, 5 Vet. App. 19, 21 (1993).

In determining whether the evidence is new and material, the specified basis for the last final disallowance must be considered.  Hodge v. West, 155 F.3d 1356 (Fed. Cir. 1998).

Analysis

In a decision of June 1975, the Board denied the claim of service connection for residuals of a Baker's cyst of the right knee on the basis that the condition clearly and unmistakably preexisted service and was not aggravated by active service.

At that time, the evidence of record consisted of service treatment records; treatment records from San Juan VA Care System from July 1973 to August 1973; and the Veteran's statements.

The Board's decision in June 1975 is final by operation of law, except the claim may be reopened if new and material evidence is presented.  38 U.S.C.A. §§ 5108, 7104(b); 38 C.F.R. §§ 3.156, 20.1100.

In April 2008, the Veteran filed the current application to reopen the claim of service connection for residuals of a Baker's cyst of the right knee.  In a rating decision in October 2008, the RO reopened the claim because new and material evidence had been submitted and denied the claim on the merits.

The RO considered treatment reports from Las Americas Ambulatory Surgical Center dated in February 1998, a VA examination report dated in September 2008, and VA records from April 2008 to March 2012, a letter from Dr. Sazy dated in February 2012, and the Veteran's statements.

In order that the evidence submitted after the last, final denial may be considered new and material, the evidence must relate to the basis for the prior denial of the claim.  The claim was previously denied because the evidence of record failed to show that the Baker's cyst underwent a permanent worsening beyond normal progression during the Veteran's active service.

The additional evidence presented since June 1975 include treatment records from Las Americas Ambulatory Surgical Center dated in February 1998, which showed a history of ongoing pain and swelling of the right knee; a letter from Dr. Sazy dated in February 2012, which showed numbness at the site of the incision made to remove the Baker's cyst; and the Veteran's testimony during a hearing before the Board, in July 2011, whereby the Veteran described pain and numbness at the site of the incision made to remove the Baker's cyst since 1973.
The additional evidence, namely, the treatment records from Las Americas, showing ongoing pain and swelling of the right knee, the letter from Dr. Sazy, and the Veteran's testimony, showing pain and numbness at the site of the incision, relate to an unestablished fact necessary to substantiate the claim, namely, evidence that the Baker's cyst underwent a permanent worsening beyond normal progression during the Veteran's active service, and as the lack of such evidence was the basis for the previous denial of the claim, this evidence is new and material under 38 C.F.R. § 3.156.




For this reason, the claim of service connection for residuals of a Baker's cyst of the right knee is reopened.


ORDER

As new and material evidence has been presented, the claim of service connection for residuals of a Baker's cyst of the right knee is reopened and to this extent only the appeal is granted.


REMAND

Although the Board has reopened the claim of service connection, the evidence is insufficient to decide the claim and further development is needed. 

Accordingly, the case is REMANDED for the following action:

1.  Afford the Veteran a VA examination to determine whether it is undebatable that the preexisting Baker's cyst of the right knee was not permanently aggravated, when the Veteran injured his knee during basic training in 1973.

In formulating the opinion, the VA examiner is asked to consider the following: 

Aggravation means a permanent worsening of the preexisting condition as contrasted to temporary or intermittent flare-ups of symptoms during service. 



A lack of aggravation means either:

a).  There is no increase in severity of the preexisting disability on the base of the evidence, pertaining to manifestations of the disability prior to, during, or subsequent to service; or, 

b).  Any increase in disability during service was due to the natural progression of the preexisting condition. 

The Veteran's file must be made available to the VA examiner for review. 

2.  After the above development, adjudicate the claim of service connection by aggravation of a Baker's cyst, applying 38 U.S.C.A. § 1153 and 38 C.F.R. § 3.306.  If the benefit sought is denied, furnish the Veteran and his representative a supplemental statement of the case and return the case to the Board. 

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

The 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. 2012).


______________________________________________
George E. Guido, Jr.
 Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs