concurring:
I concur in the result reached by the majority. I write separately, however, because eighteen months of experience with Colvin v. Derwinski, 1 Vet.App. 171 (1991), has led at least this judge to conclude that there is in the Colvin opinion a legal and a practical error which should be eliminated rather than perpetuated. I am referring to the Court’s adoption of what must be the dimmest “bright line” rule in veterans’ jurisprudence and perhaps all of administrative law: the “reasonable possibility that the new evidence, when viewed in the context of all the evidence, both old and new, would change the outcome” standard which is applied by the majority in this appeal, as it has been by the Court in many, many appeals since the Colvin opinion was issued. Colvin, 1 Vet.App. at 174.
Under 38 U.S.C. § 7104(b) (formerly § 4004(b)), a final decision by the BVA on a given claim “may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered.” The exception to this rule is 38 U.S.C. § 5108 (formerly § 3008) which states that “[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.” For ease of reference, the portion of the Colvin opinion which undertook to define the statutory phrase “new and material evidence,” and with which I disagree, will be repeated here:
The “bright line” rule in other federal courts is that to justify a reopening on the basis of new and material evidence, there must be a reasonable possibility that the new evidence, when viewed in the context of all the evidence, both new and old, would change the outcome. See Chisholm v. Secretary of Health and Human Services, 717 F.Supp. 366, 367 (W.D.Penn.1989).
We note that the Secretary of Veterans Affairs has recently promulgated a definition of “new and material”:
New and material evidence means evidence not previously submitted to agency decisionmakers which bears directly and substantially upon the specific matter under consideration, which is neither cumulative nor redundant, and which by itself or in connection with evidence previously assembled is so significant that it must be consid*304ered in order to fairly decide the merits of the claim.
55 Fed.Reg. 52,273 (1990) (to be codified at 38 C.F.R. § 3.156(a) effective Jan. 22, 1991). We do not find this definition of “new and material” to be inconsistent with the standard set out in Chisholm that we adopt here. The “reasonable possibility” standard is clearer and more easily applied.
Colvin, 1 Vet.App. at 174.
In my view, the legal flaw inherent in the Court’s adoption of the “reasonable possibility” standard was the unwarranted and unauthorized substitution by the Court of its judgment for that of the Secretary. “As [the Supreme] Court has often recognized, the construction of a statute by those charged with its administration is entitled to substantial deference.” United States v. Rutherford, 442 U.S. 544, 553, 99 S.Ct. 2470, 2475, 61 L.Ed.2d 68 (1979).
“An agency’s expertise is superior to that of a court when a dispute centers on whether a particular regulation is “reasonably necessary to effectuate any of the provisions or to accomplish any of the purposes” of the Act the agency is charged with enforcing; the agency’s position, in such circumstances, is therefore due substantial deference.”
Commodity Futures Trading Commission v. Schor, 478 U.S. 833, 845, 106 S.Ct. 3245, 3253, 92 L.Ed.2d 675 (1986). “If the agency regulation is not in conflict with the plain language of the statute, a reviewing court must give deference to the agency’s interpretation of the statute.” K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 292, 108 S.Ct. 1811, 1818, 100 L.Ed.2d 313 (1988).
As the Colvin opinion was compelled to note, the Secretary had recently promulgate ed a regulatory definition for the statutory term “new and material evidence.” See 38 C.F.R. § 3.156(a). Instead of according the requisite “substantial deference” to the Secretary’s definition, however, the Colvin panel found the Secretary’s definition “not ... inconsistent” with the “reasonable possibility” standard it chose to adopt. Research has failed to uncover a single case in which a “not inconsistent” test was determinative of the validity of an agency’s interpretation of a statute which it was charged to administer.
If, as the Colvin opinion panel seems to suggest by the “not inconsistent” language, the “reasonable possibility” of changing the outcome standard is the same as that promulgated by the Secretary in 38 C.F.R. § 3.156(a), there was no need for the Court to create confusion by adding unnecessary gloss to the Secretary’s definition. On the other hand, if the two definitions are not the same, as other language in the Colvin opinion would appear to indicate (“The ‘reasonable possibility’ standard is clearer and more easily applied”; Colvin, 1 Vet.App. at 174), absent a finding that the Secretary’s regulatory definition was in conflict with the plain meaning of the statute, the Colvin panel was required to uphold the Secretary’s definition rather than impose one which the panel intuited was “clearer and more easily applied”. Id.
I respectfully submit that the Colvin panel erred by not according even a modicum of deference to the Secretary’s definition and rushing pell-mell to adopt its preferred “bright line” rule gleaned from a single, obscure opinion by a federal trial court.
The Court’s “reasonable possibility” test also is defective from a practical perspective because it presents VA adjudicators not with a standard to apply but with an enigma to ponder. Adjudicators must prematurely adjudicate the claim using the evidence proffered by the claimant as new and material before they can decide whether that same evidence is sufficiently new and material to warrant reopening the claim which they would have to adjudicate. Merely restating the test demonstrates its absurdity. From the claimant’s perspective, the Court’s standard requires that the claimant prove that he or she will prevail with the new evidence before the claim can be reopened. In contrast, under the Secretary’s definition of “new and material,” all that a veteran need show in order to have a claim reopened and readjudicated is that the proffered evidence “by itself or in con*305nection with evidence previously assembled is so significant that it must be considered, in order to fairly decide the merits of the claim.” 38 C.F.R. § 3.156(a) (emphasis added).
Contrary to the conjecture of the Colvin panel, I believe that the “bright line reasonable possibility” test is unilluminating, unclear, and difficult to apply and I suspect that I am not alone. I also believe that the Court exceeded its authority and mandate when it adopted its own “reasonable possibility” standard and failed to accord due deference to the Secretary’s definition of the statutory term. The solution is for the Court to overturn that portion of the otherwise superb Colvin opinion and uphold 38 C.F.R. § 3.156(a).
This discourse, however, will be of no comfort or benefit to appellant herein because the evidence submitted since the May 1987 final denial by the BVA fails to meet even the Secretary’s standard under 38 C.F.R. § 3.156(a). For this reason, I concur in the result reached here by the majority.