UNITED STATES COURT OF VETERANS APPEALS

No. 95-460

George C. Nici, Appellant,

v\.

Jesse Brown,

Secretary of Veterans Affairs, Appellee.

On Appeal from the Board of Veterans\' Appeals

(Decided October 30, 1996 )

Janet A. Cohen was on the brief for the appellant.

Mary Lou Keener, General Counsel; Ron Garvin, Assistant General Counsel;
Adrienne Koerber, Deputy Assistant General Counsel; and Patrick J.
Lamoure were on the brief for the appellee.

Before NEBEKER, Chief Judge, and HOLDAWAY and IVERS, Judges.

HOLDAWAY, Judge: The appellant, George C. Nici, appeals a March 9, 1995,
decision of the Board of Veterans\' Appeals (BVA or Board) which found
no new and material evidence had been submitted to reopen a claim for a
left varicocele. On June 25, 1996, the Board\'s decision was affirmed by
a single judge in a memorandum decision. The appellant subsequently, and
in a timely fashion, moved in accordance with Rule 35(b) of this
Court\'s rules for a panel review of that decision. That motion is
granted and the single judge memorandum decision is hereby withdrawn.
For the reasons that follow, the Court, sitting in panel, will affirm
the Board\'s decision.

I. FACTUAL BACKGROUND

The appellant served on active duty in the United States Army from May
1952 to March 1954. He underwent a preinduction physical in January 1952
and an induction physical in May 1952. Both physicals, signed by two
different medical doctors, noted in the clinical evaluation section a
left varicocele of moderate degree that was nondisqualifying. A
varicocele is a \"condition manifested by abnormal dilation of the veins
of the spermatic cord, \[which results\] in impaired drainage of blood
into the spermatic cord veins when the patient assumes the upright
position.\" Stedman\'s Medical Dictionary 1907 (26th ed. 1995). During
his service, the appellant was admitted to a medical facility for \"pain
in the left half of his scrotum\" and was diagnosed with a left
varicocele. An abbreviated clinical record (64th Field Hospital) signed
by a ward officer noted that the appellant said he had had this
condition for as long as he could remember. A doctor\'s progress note
from another military hospital (21st Evacuation) by yet another medical
doctor noted that the condition had existed since puberty. The same
condition was also noted in the clinical evaluation of the appellant\'s
separation physical.

Shortly after separation from the service in 1955, the appellant filed a
claim with the then Veterans\' Administration for disability
compensation for the varicocele condition. Documents filed with the
regional office which adjudicated that claim state that the claim was
based on aggravation of a preexisting condition. In support of the claim
was an averment from the appellant that he had been transferred from the
infantry to the signal corps to \"ease the strain.\" In a report of a
post-service medical examination conducted by VA and attached to that
claim, the surgeon noted that \"there are a few moderately dilated . . .
veins involving the left spermatic cord.\" (Emphasis supplied.) The
claim was denied. On an appeal to the BVA, the Board found the
following:

The evidence in its entirety including the contentions of the veteran
has been considered. A left varicocele was noted on examination prior to
entry into service. The observation, diagnosis, and treatment during
service were for amelioration of the preservice condition. Increase in
disability of the preservice level of disablement or aggravation of the
left varicocele during service is not established by the evidence.

In 1989, the appellant filed to reopen the previous final denial of his
claim for the varicocele condition. Attached to that claim was an
affidavit from the appellant denying that he had ever made a statement
that he had had this condition \"for as long as he could remember\" and
also averring that prior to his service he had no \"awareness\" of such
a condition, and that if he had had such a preexisting condition, it had
not bothered him until his service. He iterated the fact that he had
been transferred to lighter duties because of his condition. Also
attached were certain medical records from the New York City school
system pertaining to the appellant that are silent as to a varicocele
condition.

II\. ANALYSIS

In order to reopen a case that has become final, an appellant must
submit evidence that is both new and material. 38 U.S.C. §§ 5108,
7104(b). Failure to do so precludes reopening of the claim. To be
material the new evidence must be probative and must be of such
significance that, when it is viewed in the context of all the evidence,
old and new, there is at least a reasonable possibility that the result
would thereby be changed. Evans v. Brown, 9 Vet.App. 273 (1996); Cox v.
Brown, 5 Vet.App. 95, 98 (1993). The Secretary\'s regulation, 38 C.F.R.
§ 3.156(a) (1995), states the same principle in a slightly different, if
somewhat vaguer and more subjective way, i.e., the \"new\" evidence must
be of such significance \"that it must be considered in order to fairly
decide\" the claim. Of course, evidence that does not present at least a
reasonable possibility of changing the result perforce cannot be of such
significance that \"fairness\" requires its consideration. This Court
has held, with limited exceptions not applicable to this case, that
credibility of the new evidence is to be presumed for purposes of
reopening only. Once there is a reopening, de jure or de facto, the fact
finder is then free to assess credibility, or its lack, in determining
the merits of the case. Justus v. Principi, 3 Vet.App. 510 (1992).

In attempting to establish that his affidavit and the school records are
material, the appellant appears to be arguing alternative theories:

\(1\) that the school records are material in tending to negate the
prior adjudication that found the condition to be \"preexisting\"; (2)
that the affidavit is material in tending to negate one piece of
evidence used in the prior adjudication, i.e., a clinical note that the
appellant said he had had the condition \"for as long as he could
remember\"; (3) that even if the condition had preexisted, the affidavit
is both new and material in establishing aggravation. We will consider
the contentions seriatim: (1) If we understand the appellant\'s argument
concerning the school records, it is that they are material in that
they, potentially at least, establish, contrary to the clinical
evaluations of the induction physicals, that the varicocele condition
was not \"preexisting.\" The Board in treating this issue simply noted
that, unlike the clinical evaluations made in connection with induction
physicals, the school records do not indicate that there was a
comprehensive physical examination or evaluation, but are simply nursing
notes concerning unrelated complaints. Therefore, the Board found no
reasonable possibility that these records could change the result. The
Court agrees. The school records do appear to be marginally probative in
that they tend to show, or at least imply, that the varicocele condition
may not have existed during the appellant\'s school years. They are far
from conclusive on that issue, but are of some probative value. Evans,
supra. As to the reasonable possibility of a changed outcome, two
different doctors, one at a preinduction physical and another one at the
induction physical, found in clinical evaluations of the appellant, that
he had a moderate varicocele condition on acceptance into the service.
There simply is no reasonable possibility that the school records, which
do not contain even one, let alone two, comprehensive clinical
evaluations could reasonably change the result. In this connection, it
should be noted that the school medical records end in 1949. The
appellant was inducted in 1952. Therefore, even assuming the records
contained a clinical evaluation showing no varicocele condition in 1949,
which they do not, they do not rebut the clinical evaluations that
identified the condition some two or three years later.

\(2\) The appellant\'s affidavit is new insofar as it purports to rebut
the clinical notes in service indicating the appellant had told the
doctors that he had the condition as long as he could remember. However,
while new and arguably \"probative,\" it is not material. In this
connection, the BVA assumed, as they should have, and as this Court does
now, the credibility of the appellant\'s testimony, Justus, supra.
However, the credibility of the statement is only the beginning of the
inquiry concerning materiality. To be material, the probative evidence
must, when considered with all the evidence both new and old, present
the possibility (or be of such significance) that it could potentially
change the result. Therefore, in addition to its truthfulness, the
weight of the \"new\" evidence, in context of all the evidence, must, by
necessity, be considered in the decision as to materiality. In this
regard, the complete removal from consideration of the clinical notes
showing a preexisting condition by history would avail the appellant
nothing. Whether he admitted a history of this condition or not pales
into insignificance in light of the unrebutted induction physicals that
show such a condition, clinically. His statement does not address at all
the undeniable facts upon which the finding of preexistence was based,
i.e., the clinical evaluations of the two doctors who conducted the
physical examinations at his two separate induction physicals. There is
no indication that these evaluations were based on history furnished by
the appellant. They are denominated \"clinical evaluations\"; i.e., a
professional evaluation based on physical facts found by the medical
personnel and are quite specific as to the severity of the condition. Of
course, to the extent that the appellant may be attempting to cast doubt
on the medical soundness of these evaluations and may be asserting that
the doctors at these physicals were simply wrong, then his own medical
opinion or even his awareness of the condition as a lay person would be
of no evidentiary value. Espiritu v. Derwinski, 2 Vet.App. 492 (1992).
In summary, the new evidence, insofar as it relates to negating the
previous denial based on preexistence of the condition, simply does not
present a reasonable possibility of changing that result.

\(3\) The appellant\'s statement, when evaluated as new medical evidence
that may establish aggravation of a preexisting condition, is likewise
unavailing. Insofar as it may be interpreted as his own medical opinion
of aggravation, it is incompetent for the reasons stated in Espiritu,
supra. There is an even more fundamental reason for denying its use in
reopening his claim. It is not new. He stated nothing concerning the
medical circumstances of his condition that was not before the Board in
1955: Two clinical evaluations of a moderate varicocele condition at
induction; a flareup of that condition during service; and a surgeon\'s
note after service that this condition was moderate were all before the
Board in 1955. Also before the Board at that time was the fact he had
been \"reprofiled\" because of the condition and given lighter duties, a
fact he restated in his most recent statement. The statement he made in
connection with his present claim is cumulative and is therefore not
new. See Hunt v. Derwinski, 1 Vet.App. 292 (1991); Colvin v. Derwinski,
1 Vet.App. 171, 174 (1991) (cumulative evidence not \"new\").

There is one other item that merits mention. In her brief, the
appellant\'s counsel has attached several exhibits, denominated as such.
Some are duplicates of evidence in the record and some are not. The
latter consists of medical treatises. This Court may consider only the
record that was before the Board. 38 U.S.C. § 7252(b). This limitation,
a common one for appellate courts, has been iterated and reiterated by
our Court in numerous opinions. See e.g., Gabrielson v. Brown, 7
Vet.App. 36, 41-42 (1994); Obert v. Brown, 5 Vet.App. 30, 32 (1993);
Rogozinski v. Derwinski, 1 Vet.App. 19 (1990). While it is true that
there is, unavoidably, a certain amount of \"fact finding,\" i.e., a
comparative weighing and evaluation of new and old evidence in
connection with the materiality issue, as noted, supra, the weighing and
evaluation must be based on the record, and only the record, that was
before BVA. We trust that in the future counsel will take care to become
familiar with this Court\'s review authority.

The decision of the Board was correct in fact and law. It is AFFIRMED.

IVERS, Judge, concurring:

I concur in the opinion as written, but write separately to raise a
point regarding the appellant\'s pleadings in this case. In the
appellant\'s Motion for Panel Review (Appellant\'s Mot.), counsel for
the appellant quotes from 38 U.S.C. § 1111 but in so doing, fails to
include a key phrase (\". . . except as to defects, infirmities, or
disorders, noted at the time of the examination, acceptance, and
enrollment . . .\"), a phrase which is directly applicable to the facts
in this case. See Appellant\'s Mot. at 3.

Counsel is reminded that the Court does read counsel\'s submissions and
the pertinent statutes and regulations. An omission such as this is
neither helpful to the Court nor helpful to counsel and counsel\'s
client. See Model Rules of Professional Conduct Rule 3.3(a)(3) cmt.
(1994).