BVA9504817 DOCKET NO. 92-22 382 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in New York, New York THE ISSUE Whether new and material evidence has been submitted to reopen a claim for service connection for a left varicocele. REPRESENTATION Appellant represented by: Janet A. Cohen, Attorney at Law ATTORNEY FOR THE BOARD Christine E. Puffer, Associate Counsel INTRODUCTION The veteran had active service from May 1952 to March 1954. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 1991 decision of the Department of Veterans Affairs (VA) New York, New York, Regional Office (RO). The instant claim was administratively remanded to the RO in December 1993 in conformance with a pending stay on cases involving claims of clear and unmistakable error in prior Board decisions. The veteran had claimed such error existed in the March 1955 Board decision in his October 1992 substantive appeal. The claims folder was returned to the Board in February 1995 by the RO in light of a decision rendered by the United States Court of Appeals for the Federal Circuit in Smith v. Brown, 38 F.3d 1516 (Fed. Cir. 1994). In that case, the Federal Court determined that clear and unmistakable error review pursuant to 38 C.F.R. § 3.105(a) (1994) was applicable only to adjudicatory decisions by the RO, and not to those of the Board. Id. at 1527; see also Duran v. Brown, No. 93-388, slip op. at 12 (Dec. 13, 1994). Therefore, no claim of clear and unmistakable error under 38 C.F.R. § 3.105(a) can exist as a matter of law with respect to the March 1955 Board decision. Smith. at 1527; Duran at 12. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially avers that he has submitted new and material evidence sufficient to reopen a claim for service connection for a left varicocele. In support of his contentions he has cited service medical records diagnosing him with a left varicocele, finding that it had been in the line of duty. The veteran contends that he had never indicated to any examiner that his left varicocele had existed prior to service, and denies such statements that have been attributed to him. He maintains that he never had any problems with a left varicocele prior to entering service. In the alternative, the veteran emphasizes that he had experienced no problems with it prior to service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that new and material evidence sufficient to reopen a claim for service connection for a left varicocele has not been submitted. FINDINGS OF FACT 1. All evidence necessary for an equitable adjudication of the instant claim has been obtained by the RO. 2. The Board denied entitlement to service connection for a left varicocele by decision of March 1955. 3. Evidence submitted by the veteran since the Board's decision, consisting of his statements, duplicate service medical records and photocopies of high school medical records includes evidence which is duplicative or redundant, and/or does not lead to a reasonable possibility, when considered in light of all evidence of record, of a change in the outcome of the case. CONCLUSIONS OF LAW 1. The Board's March 1955 decision denying service connection for a left varicocele is final. 38 U.S.C.A. §§ 5108, 7103(a) (West 1991); 38 C.F.R. § 20.1100 (1994). 2. New and material evidence sufficient to reopen the veteran's claim has not been presented. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service connection for a left varicocele was denied by Board decision of March 1955. Evidence of record at that time included the veteran's service medical records, a May 1954 VA examination report, and contentions offered by the veteran. At the time of the noted VA examination, the veteran reported that his left varicocele had existed prior to service, but had been aggravated therein. He reiterated these contentions in his January 1955 appeal. In its decision, the Board noted that the veteran's induction examination had revealed the existence of a left varicocele. The veteran's four-day hospitalization in January 1953 for treatment of the condition was reviewed, with an associated clinical record that documented the veteran's report that he had "had a varicocele for as long as he could remember." The Board denied the veteran's claim, finding that the left varicocele had pre-existed service, and had not been aggravated therein. The applicable criteria provide that when a claim is disallowed by the Board, it may not thereafter be reopened and allowed absent a determination by the Chairman that reconsideration is warranted, and no claim based upon the same factual basis shall be considered. 38 U.S.C.A. § 7103. In order to reopen his claim, it is incumbent upon the veteran to submit new and material evidence. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156(a) (1994). The VA must review all the evidence submitted since the last final decision on the merits, in this case the March 1955 decision, in order to determine whether the claim must be reopened and decided on the merits. See Duran v. Brown, No. 93-388, slip op. at 7 (Dec. 13, 1994); Glynn v. Brown, 6 Vet.App. 523 (1994). New evidence, submitted to reopen a claim, will be presumed credible solely for the purpose of determining whether the claim has been reopened. Justus v. Principi, 3 Vet.App. 510, 513 (1992). New evidence is that which is not merely cumulative or redundant of other evidence of record. Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991). Material evidence is relevant to and probative of the issue at hand, and must be of sufficient weight or significance that there is a reasonable possibility that the new evidence, when viewed in context of all the evidence, both new and old, would change the outcome. Duran at 7; Cox v. Brown, 5 Vet.App. 95, 98 (1993). The evidence submitted by the veteran in support of his attempt to reopen his claim includes duplicate service medical records, his school medical record, and the veteran's statements. The duplicate service medical records clearly do not represent new evidence as they were of record at the time of the initial adverse decision. The veteran has contended, in part, that he did not have a left varicocele prior to entering service; alternatively arguing that if such a condition had existed prior to service, it was aggravated therein. The latter representation, that a left varicocele condition was aggravated in service, was considered, and rejected, at the time of the initial Board decision. Therefore it is redundant, and not new. The veteran contends that he did not have a left varicocele prior to service, and, in support of this averment, has cited several service medical record entries and submitted a copy of his school medical record. The cited service records, including a January 1953 entry by Dr. Fred Bentz, indicate that the veteran's varicocele was in the line of duty. The veteran's school medical record does not mention the existence of a varicocele. The latter record mainly contains notes by the school nurse dating from January 1941 to May 1949 reflecting treatment largely for hearing complaints. There is an indication that the veteran underwent an examination in December 1947 with negative findings. The reason for the examination is unclear. Although the noted evidence is assumed to be credible, when viewed in light of all evidence of record since the Board's March 1955 decision it fails to raise a reasonable possibility of a change in the outcome of the case. The veteran's school record fails to indicate whether the veteran underwent any comprehensive examination at any time, and mainly contains nursing notes regarding unrelated complaints. The veteran's service medical records include a January 1952 preinduction examination report containing a diagnosis of a left varicocele. On reexamination for induction purposes in May 1952, the veteran's left varicocele was again noted, and he was found to be qualified for service. A January 1953 clinical record documented the veteran's report of having had a left varicocele since puberty, and an abbreviated medical record from when the veteran was 23 years old documented his report of having "had a varicocele for as long as he could remember." In support of his 1954 claim, the veteran submitted a substantive appeal acknowledging that the varicocele had preexisted service, and he reiterated this contention at a contemporaneous VA examination. The presumption that the veteran entered service in sound condition has been clearly rebutted by the evidence of record. 38 U.S.C.A. § 1111; 38 C.F.R. § 3.304(b). The veteran's current averment that his left varicocele did not preexist service is not sufficient to raise a reasonable possibility of a change in the outcome when considered together with his contemporaneous clinically obtained data and his own statements, both during service and in his January 1955 appeal, that the condition had preexisted service. In any event, lay testimony may not serve as a predicate to reopen a previously denied claim. See Moray v. Brown, 5. Vet.App. 211, 214 (1993). The veteran's service medical records with notation that the varicocele was in line of duty were previously of record and are not new. The Board has reconsidered the veteran's claim as requested in light of 38 C.F.R. § 3.156(a). In short, considering all the evidence of record, the veteran's recent testimony and his school medical record, even if presumed to be credible, are of insufficient weight to provide a reasonable possibility of a change in outcome. Such evidence is, thus, not material. See Kates v. Brown, 5 Vet.App. 93, 95 (1993). Accordingly, the evidence submitted does not meet the requirements for reopening the claim for service connection for a left varicocele and the appeal must be denied. 38 U.S.C.A. §§ 5108, 7103(a) (West 1991); 38 C.F.R. §§ 3.156(a), 20.1100 (1994). ORDER New and material evidence has not been submitted to reopen a claim of entitlement to service connection for a left varicocele. The appeal is denied. CHARLES E. HOGEBOOM 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. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.