Pritchett v. Derwinski

IVERS, Associate Judge, filed the opinion of the Court, in which HOLDAWAY, Associate Judge, concurred. STEINBERG, Associate Judge, concurring in part and dissenting in part, filed separately. . IVERS, Associate Judge: Appellant, Richard G. Pritchett, seeks service connection for schizophrenia and non-service-connected pension. Additionally, appellant has moved to seal portions of the record. The Secretary of Veterans Affairs (Secretary) has made a motion for summary affirmance. For reasons stated herein, appellee’s motion for summary af-firmance is denied and appellant’s motion to seal is granted in part and denied in part. The case is remanded to the Board of Veterans’ Appeals (BVA) for further action consistent with this opinion. I. BACKGROUND Appellant served in the Army from July 10, 1967, to April 19, 1970. R. at 1. In June, 1968, he was diagnosed as having bradycardia (slow heartbeat). R. at 9. While hospitalized for treatment, appellant presented symptoms of ' schizophrenia. Service medical records indicate that “he showed marked religiosity and felt that there was some connection between God and his vagus nerve”. Id. (The vagus nerve is one of many nerves located in the back of the head. It “is the longest of the cranial nerves and has the most extensive distribution, passing through the neck and thorax into the abdomen.” Henry Gray, Anatomy of the Human Body 1181 (C. Clemente 30th ed. 1985)). Appellant was “rapidly evacuated” to a local hospital for further treatment. After evaluation, the initial diagnosis of schizophrenia was changed to “situational maladjustment, acute, moderate, manifested by hyper-religiosity and over-concern with his physical well being.” R. at 7. The diagnosis further indicated that the condition occurred in the line of duty. Id. There are no further references to an in-service psychiatric disorder in the record. Appellant was admitted to a local hospital in April, 1980 for weight loss, due to fasting, and prolonged periods of silence. He did not respond to treatment and subsequently was transferred to another hospital. Appellant made a brief improvement in that hospital but after his discharge, he refused to follow up with outpatient therapy, stopped taking his medication, resumed his fast and became progressively more mute. R. at 47. In June, 1980, he was readmitted at the request of his family. He was diagnosed as having catatonic schizophrenia. Although a conservator was appointed for a brief period of time (R. at 46-50), appellant was later released, but was hospitalized again in August, 1980, and conservatorship proceedings were reinsti-tuted. He was released one month later, but the conservatorship remained in effect until June, 1981. At that time, appellant had been working steadily for eight months, had continued his therapy, and was not taking any medication. R. at 55-58. Appellant managed to continue working for approximately two more years, but had refused to continue to attend therapy sessions. Private medical records reflect that certain of appellant’s symptoms became more pronounced. Appellant left his job in approximately 1983. He became more reclusive and delusional. His wife and mother commenced conservatorship proceedings in September 1984 (R. at 59-69) and caused appellant to be hospitalized for one month. In 1986, appellant began receiving treatment from a private physician. That physician recommended that appellant’s conser-vatorship be continued to ensure that he take his medication and continue with treatment. R. at 68-69. He also concurred in the diagnosis of chronic paranoid schizophrenia. In October, 1988, appellant filed a claim for service-connected disability benefits for his psychiatric condition and for bradycar-dia with the Veterans’ Administration (now Department of Veterans Affairs) (VA). R. at 27. In his statement in support of his claim, appellant stated that he thought that — 118 — he had previously removed some of his service medical records from his file. He also requested that the VA obtain medical records from Letterman Hospital where he was hospitalized for psychiatric evaluation and treatment while in service. The VA denied appellant’s claim on the grounds that appellant was diagnosed as suffering from acute situational maladjustment and bradycardia (without heart disease) while in service, neither of which are compensable. The rating board considered only appellant’s service medical records. R. at 27, 28, 32. A Notice of Disagreement was filed on appellant’s behalf providing the VA with the name and address of appellant’s treating psychiatrist. R. at 29. Appellant’s substantive appeal set forth, in elaborate detail, the series of events which occurred while appellant was in the service, allegedly causing his psychiatric condition. The VA obtained medical records from private hospitals and conducted its own psychiatric exam. Attached to the psychiatric report were appellant’s written responses to questions on the VA form regarding history of illness and present complaints. The report does not refer to or attempt to reconcile appellant’s written statements regarding the onset of his illness. Although the VA physician concluded that appellant suffered from chronic paranoid schizophrenia, he did not offer an opinion as to whether the illness was present while appellant was in the service. In July 1989, appellant submitted documents pertaining to his three conservator-ship proceedings. R. at 46-69. These documents contain a letter from one of appellant’s private physicians to the judge presiding over the conservatorship proceedings which states that appellant’s “psychiatric history dates back 12 years when the veteran was briefly hospitalized psychiat-rically.” R. at 47. The rating board denied appellant’s reopened claim, stating that “in absence of evidence of a psychiatric disorder during the ten-year period following service separation, it would be speculative to conclude that the situational maladjustment diagnosed in service was the onset of the currently diagnosed schizophrenia.” R. at 70-71. Appellant then submitted a “second appeal statement” with various correspondence attached thereto. However, the supplemental statement of the case does not reflect that this evidence was received or reviewed by the Regional Office. R. at 75-77. Appellant then submitted an eight page reply, with attachments, to the supplemental statement of the case which delineated each and every point with which appellant disagreed. Appellant’s representative also submitted a statement which alleged that bradycardia was a symptom of schizophrenia and that appellant should be given the benefit of the doubt on the issue of service connection. R. at 78-81. On June 11, 1990, the BVA denied appellant’s claim on the grounds that 1) “a chronic psychiatric disorder was not demonstrated in service and a psychosis was not demonstrated within one year of separation from service”; and 2) “a chronic pathological process manifested by brady-cardia was not shown in service or within the first post service year.” Richard G. Pritchett, BVA 90-18990, at 4 (Jun. 11, 1990). Appellant has appealed that decision to this Court. This Court has jurisdiction to hear the appeal pursuant to 38 U.S.C. § 7252 (formerly § 4052). II. ANALYSIS A. Motion to Seal Portions of the Record Appellant has moved to seal portions of the record. The entire record is temporarily under seal. In his statement in support of his motion, appellant alleges that “much of the material I submitted to the VA is very personal and private” and that the knowledge that the information was a matter of public record would cause him “great emotional distress, and further frustration, disgrace and humiliation.” Appellant further states: I would never have filed my case if I had believed that the record would not be sealed. Much of the material I submitted to the VA is very personal and — 119 — private and I would be very upset to know that anyone could look at it or have copies made. There are hospital reports and doctor statements on my psychiatric condition and pages of statements made by myself talking about my problems since the illness first occurred in the service in Feb-Mar of ’68. I told the YA things that I had never told anyone— things I am only starting to tell my doctor. They are personal and private things that I feel the public has no right to see. Appellant’s Statement at 1. Appellee has not opposed the motion. Appellant’s motion to seal in this case places the Court squarely in the middle of a dilemma. We are faced with two extreme points on a continuum of public access to documents. At the one extreme, we have the requirement that all decisions of the Court and all briefs, motions, documents, and exhibits received by the Court shall be available to the public. This requirement is set forth at 38 U.S.C. § 7268(a) (formerly § 4068(a)) and is in keeping with the general rule governing Federal courts as set forth in Nixon v. Warner Communications, Inc., 435 U.S. 589, 98 S.Ct. 1306, 55 L.Ed.2d 570 (1978), Valley Broadcasting Co. v. United States District Court, 798 F.2d 1289 (9th Cir.1986) and a long line of cases from as early as 1894, Ex parte Drawbaugh, 2 App.D.C. 404 (1894). At the other extreme, we have an administrative system that has, for the most part, been totally protective of veterans’ records. The requirement of confidentiality of VA records is set forth at 38 U.S.C. § 5701(a), (b) (formerly § 3301(a), (b)) and further defined by regulations at 38 C.F.R. §§ 1.513, 1.513(a), 1.514, 1.514(a), 1.554, 1.554(a)(6), (7) (1991). This Court has a duty to conduct its business with at least equal regard for each requirement. As a Court, we cannot, as the dissent seems to suggest, ignore or treat lightly, Congress’ direction at 38 U.S.C. § 7268(a) that our decisions and all briefs, motions, documents, and exhibits received by the Court be available to the public. Granted, Congress did give the Court the authority to “make any provision which is necessary to prevent the disclosure of confidential information, including a provision that any such document or information be placed under seal to be opened only as directed by the Court.” 38 U.S.C. § 7268(b)(1). This does not, however, give us the authority to broadly deny public access nor does it provide specific guidance with respect to the applicable definition of “confidential information.” The dissent points out that, at the time Congress passed the Veterans’ Judicial Review. Act (VJRA), there existed a definition of “confidential information” at 38 U.S.C. § 5701. This definition, however, is extremely broad and, in fact, defines the requirement at only one extreme of our continuum. 38 U.S.C. § 5701(a) states: All files, records, reports, and other papers and documents pertaining to any claim under any of the laws administered by the [VA] and the names and addresses of present or former members of the Armed Forces, and their dependents, in the possession of the [VA] shall be confidential and privileged, and no disclosure thereof shall be made except as provided in this section. Because we are a Federal court of record and not an administrative agency, we cannot and should not be bound by the definitions which govern an administrative agency like the VA with regard to the treatment of confidential information. In attempting to establish a position on our continuum, this Court could take the easy route, simply adopt one extreme or the other, hold fast to our position, and be done with it. However, to do so would be to ignore our obligation to both the public and to our veteran appellants. Thus, we must begin to define what actions can or should be taken by this Court in addressing motions, such as appellant’s, to seal the record or portions of the record in a . case before us. As suggested earlier, we are not being asked to go about this task in a vacuum. Guidance in this area abounds. As a starting point, we must look to our own opinions and rules. In that regard, we have the recently decided case of Stam v. Derwinski, 1 Vet.App. 317 (1991). That case, as so — 120 — ably pointed out by the dissent, relies on an analogy to Fed.R.Civ.P. 26(c), a discovery rule as a first step by this Court in dealing with the complex issue of public access. The “good cause” standard adopted therein was applied to the specific facts of that case and arrived at a result based on that application. Here, we will further analyze the issue and explore more fully our responsibility in balancing the interests represented by the extremes on our continuum of public access to court records. While we do not feel that Stam provides more than a starting point in examining this issue, we disagree with the dissents’ apparent proposed “bright-line rule” that records be sealed simply upon a request by the appellant and an allegation of embarrassment, humiliation, or hesitancy to pursue a claim. More is required in order to properly balance the conflicting demands regarding access to court records. For this Court to meet its obligations to the general public and to our veteran appellants with regard to public access to its records, we must conduct an examination of each case and each document or group of documents for which protection is sought and, in so doing, balance the conflicting interests presented. While the extremes on our continuum are defined by statute and regulation, we are drawn to the common law in our search. In balancing these interests, we must begin from the position that our records are, by statute, to be “public records open to the inspection of the public.” 38 U.S.C. § 7268. That being the case, we must then determine whether or not appellant has established a basis upon which we can rely to deny public access. The Second Circuit, in In re National Broadcasting Co., 635 F.2d 945, 952 (2d Cir.1980) (footnotes omitted), set forth a starting point when it stated: When physical evidence is in a form that permits inspection and copying without any significant risk of impairing the integrity of the evidence or interfering with the orderly conduct of the trial, only the most compelling circumstances should prevent contemporaneous public access to it. From that point, we must begin to examine and “balance” those factors submitted by appellant in seeking to seal the record to determine their compelling nature or lack thereof. The Supreme Court in Nixon v. Warner Communications, 435 U.S. 589, 602, 98 S.Ct. 1306, 1314, 55 L.Ed.2d 570 (1978), established this starting point when it determined that there is a presumption “however gauged” in favor of access. Valley Broadcasting Co. v. United States District Court, 798 F.2d 1289, 1294 (9th Cir.1986). “As a general rule, common law, statutory law and the United States Constitution support the proposition that official records of all courts, shall be open and available to the public for inspection and copying.” Willie Nelson Music Company v. Commissioner of Internal Revenue, 85 T.C. 914, 917 (1985), quoting Nixon v. Warner Communications, Inc., 435 U.S. 589, 597, 98 S.Ct. 1306, 1311, 55 L.Ed.2d 570 (1978). Although the Nelson case involved a motion to seal in a tax case, this general principle is applicable to virtually every type of case. See Ex parte Drawbaugh, 2 App.D.C. 404, 406 (1894). In Nelson, the Court discussed the factors that must be weighed when deciding a motion to seal. The Court stated that the interests of the public are presumptively paramount as against those advanced by the parties but this presumptive right to access may be rebutted by a showing that there are countervailing interests sufficient to outweigh the public interest in access. Nothing here should be construed to signal that our consideration of the issue of public access has, or should, rise to the level of a constitutional issue. We are dealing here with an exercise of this Court's inherent “supervisory power over its own records and files.” Nixon, 435 U.S. 589, 598, 98 S.Ct. 1306, 1312. It is the duty of the Court to weigh and balance the various factors involved here and arrive at a resolution of the matter that, in each case, adequately addresses the needs of the parties involved — that best balances the competing interests. — 121 — To arrive at such a resolution, we have an array of options available and we should explore each of them. We first have the option of denying appellant’s motion and proceeding with the disposition of this case with the full record available to the Court and to the public. Appellant has stated reasons sufficiently compelling to render this option inappropriate. A second option available to us is to seal the entire record as urged by the dissent. While this option has some attraction in terms of ease of administration, it fails to adequately weigh and balance the competing interests in this case. Thus this option is not suitable for application in this case. A third option available to us is to direct that certain material be sealed, but that the balance of the record remain open to public access, thus addressing to some extent, each of the competing interests here. In this regard, appellant has supplied the Court with a specific listing of portions of the record and has asked that we seal them. We will address those requests, se-riatim and dispense with each in a separate order. For purposes of this opinion, however, suffice it to say that we have ordered certain limited portions of the record placed under seal so as to be accessible only to the Court and the parties for purposes of this case. A fourth option available to the Court is to remove certain material from the Court’s record and return it to the Secretary for inclusion in the veteran’s VA record, subject to the protections afforded individual veterans’ records. Here again, we have chosen to exercise this option and, by separate order, as previously described, we have instructed the Clerk of the Court to remove certain items from the record, return them to the Secretary for reincorporation in appellant’s VA file, and further, directed that the record on appeal be renumbered accordingly. As a general rule, this option should be exercised by the parties pursuant to Rules 10 and 48 before the record is filed. Here, however, where the parties have not arrived at agreement before the record reaches us, and where appellant seeks to have the record, or portions thereof, sealed, we will undertake the task. Certain documents in this case which appellant seeks to have sealed have been part of other proceedings before other courts and there is nothing of record to indicate that they are not accessible to the public in connection with those proceedings. Thus, those documents will not be placed under seal in this Court. Those documents are more specifically addressed in the order referred to above. While the options discussed here may not be exhaustive of the various possibilities regarding access to this Court’s records, they are, at a minimum, illustrative of what is required in balancing the various competing interests present when we are asked to seal a record. For this Court to perform a less than complete analysis of the request of an appellant to seal the record and of the records involved would be to shirk our duty to protect the interests of both the public and veteran appellants. B. Merits of Appellant’s Appeal Appellant alleges that his written statements regarding the onset of his psychiatric disability were erroneously discredited. Br. at 2. He specifically refers to information contained in two of his substantive appeals. In the first substantive appeal, appellant describes, in great detail, the nature of his disability and its effect on his thoughts, actions, and well-being. Appellant further explains that he attempted to control his disability after he was originally hospitalized in order to avoid discharge. In another substantive appeal appellant reiterates that while hospitalized he tried to control his symptoms in order to avoid discharge and/or further hospitalization. He alleges this change in behavior resulted in a change in diagnosis from schizophrenia to acute situational maladjustment. In response, the Secretary argues that there was no evidence of psychosis or psychiatric disease in service and that appellant’s current condition did not become manifest to a degree of ten percent within one year of discharge. Motion at 4-5. Appellee cites the fact that appellant was not hospitalized until 1980 to support its argument. — 122 — However, neither the BVA nor appellee’s motion address appellant’s statements regarding the onset of his psychiatric disabilities. The Statement of the Case, Supplemental Statement of the Case, and list of evidence reviewed do not even refer to any of the written material submitted by appellant. Since these statements are the only evidence of record which could demonstrate that appellant’s psychiatric disability had its onset in service and continued after discharge, it is incumbent upon the Regional Office and the BVA to thoroughly review this evidence and evaluate its credibility. See Gilbert v. Derwinski, 1 Vet.App. 49, 56-57 (1990); Hatlestad v. Derwinski, 1 Vet.App. 164, 169-170 (1991). We find that the BVA decision lacks an analysis of the credibility or probative value of the evidence submitted by or on behalf of appellant in support of his claim. The BVA decision also fails to address the opinions from appellant’s treating psychiatrists. Although it refers to letters from both doctors in its recitation of evidence reviewed, it does not discuss the credibility of these medical statements regarding the onset of appellant’s disability. Those statements provide yet another piece of evidence which could establish service connection or at least place the evidence in equipoise which would give the veteran the benefit of the doubt under 38 U.S.C. § 5107(b) (formerly § 3007(b)). Again, in the absence of clearly stated reasons or bases, to include an assessment of credibility by the BVA, this Court is unable to determine whether the BVA’s ultimate conclusions were correct. See Sammarco v. Derwinski, 1 Vet.App. 111, 113-114 (1991); Hatlestad, 1 Vet.App. at 170. It should also be noted that appellant and his representative requested, on at least two separate occasions, that the VA obtain recent medical reports from appellant’s current psychiatrist. R. at 34, 80. The record contains only one such report, dated November 1986. R. at 103-104. Given the nature of this case, it would seem appropriate for the VA to solicit an opinion concerning the issue of service connection from appellant’s treating psychiatrist. At a minimum, the VA has a duty to obtain existing medical records which would assist appellant in developing his claim. See Littke v. Derwinski, 1 Vet.App. 90 (1990); 38 U.S.C. § 5107(a) (formerly § 3007(a)); 38 C.F.R. § 3.103(a) (1991). Lastly, the BVA failed to address the statement by appellant’s representative that bradycardia could be a symptom of schizophrenia. R. at 152. Before the BVA, the representative referred to a medical treatise which discusses this issue. However, the BVA declined to address the issue. This also violates our holdings in Gilbert, Sammarco, and Hatlestad. The Secretary argues in his motion for summary affirmance that summary disposition is appropriate because “appellant has not demonstrated that the BVA committed error in its findings of fact, conclusions of law, procedural processes, application of the benefit-of-the-doubt doctrine, or articulation of reasons or bases.” Motion at 10. However, because the incomplete nature of the record below does not permit proper review by this Court, we remand this case to the BVA for further action consistent with this opinion. The BVA is further ordered to review appellant’s claim to determine whether he is eligible for non-service-connected pension by reason of unemploya-bility. See Ferraro v. Derwinski, 1 Vet. App. 326, 333 (1991); 33 C.F.R. § 3.151(a) (1991). III. CONCLUSION Therefore, appellant’s motion to seal portions of the record is GRANTED in part and DENIED in part. The Secretary’s motion for summary affirmance is DENIED. The decision of the Board is VACATED and the case is REMANDED to the BVA for further development and reconsideration of all relevant evidence, issues, and regulations in a manner consistent with this opinion.