Stephens v. Principi

FARLEY, Associate Judge,

concurring:

Appellant’s claim for service connection for a skin condition was denied in 1980 and 1981 decisions by the BVA and in a March 1983 rating decision which became final when an appeal was not pursued.

In 1989, appellant sought to have his claim reopened and readjudicated pursuant to 38 U.S.C. § 5108 by submitting as new and material evidence his own testimony (R. at 263-69), a newspaper article about himself (not of record), and a statement that additional service medical records could not be located (R. at 272). The BVA determined that the proffered evidence was “cumulative in effect.” Wilbur B. Stephens, BVA 90-46095, at 5 (Dec. 7, 1990).

I agree with the BVA that the 1989 evidence was cumulative of that considered previously. Compare, e.g., the 1989 hearing testimony (R. at 263-69) with 1983 testimony (R. at 228-43) and with 1981 testimony (R. at 174-86) and with 1979 testimony (R. at 105-13). In the separate opinion which follows, my brother Steinberg points to certain passages of the 1989 hearing from which he purports to glean six nuggets of “new” evidence. However, my prospecting of the earlier hearings compels me to continue to adhere to my view that the new evidence is cumulative. See, e.g., R. at 175-76 (appellant explains the absence of a notation of skin problems on his discharge examination by first stating that he did not recall the examination and then stating that, if there was such an examination, the “utmost thing in [his] mind was [to] get home” and he supposed that “they ran me through like a cow”); R. at 176,182 (appellant and his attorney discuss Dr. Champion’s opinion that appellant’s condition was service connected); R. at 113, 181 (appellant states that he was unable to work due to his condition); R. at 112 (when appellant first sought treatment for skin problems on his ears there were also small amounts on his elbows and knees); R. at 174-75, 180, 186, 228-9, 233 (appellant or his attorney testified to appellant having received outpatient and “sick call” treatment for skin problems during service).

*522Like the majority, I would affirm the BVA’s determination that the evidence was not “new and material.” I would do so, however, solely for the reason that the evidence submitted by appellant was not “new.” I find no justification for the majority’s resort to the “reasonable possibility” test of Colvin v. Derwinski, 1 Vet.App. 171, 174 (1991), in this appeal. Moreover, for the reasons contained in my dissenting opinion in Blanchard v. Derwinski, 3 Vet.App. 300, 303-05 (1992), I continue to believe that the adoption by the Court of the “reasonable possibility” test in Colvin was error and should be overturned.