Medical treatise, Pritchet, Gilbert, Sammarco, Hatlestad,

Lot of good refences to cases dealing with medical treatises:

"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.

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. 90-1060
PRITCHET.060
Search Terms: DOUGLAS UNITED STATES COURT OF VETERANS APPEALS

No. 90-1060

Richard G. Pritchett, Appellant,

v.

Edward J. Derwinski,
Secretary of Veterans Affairs, Appellee.


On Appeal from the Board of Veterans' Appeals

On Appellee's Motion for Summary Affirmance
and to Stay Further Proceedings

On Appellant's Motion to Seal Portions of the Record

(Submitted May 10, 1991 Decided January 31, 1992)


Richard G. Pritchett, pro se.

Raoul L. Carroll, General Counsel, Barry M. Tapp, Assistant General
Counsel, Pamela L. Wood, Deputy Assistant General Counsel, and Angela
Foehl were on the pleadings for appellee.


Before HOLDAWAY, IVERS, and STEINBERG, Associate Judges.

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
affirmance 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 re-admitted 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 reinstituted. 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 conservatorship 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 bradycardia 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 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
conservatorship 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 psychiatrically."
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 bradycardia
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. ù 7252 (formerly ù
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 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 VA 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. ù 7268(a) (formerly
ù 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 (
1978), Valley Broadcasting Co. v. United States District Court, 798 F.2d
1289 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. ù 5701(a), (b) (formerly ù 3301(a), (b)) and further defined
by regulations at 38 C.F.R. ùù 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. ù 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.
ù 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. ù 5701.
This definition, however, is extremely broad and, in fact, defines the
requirement at only one extreme of our continuum. 38 U.S.C. ù 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 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. ù 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, at 602 (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 (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. 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.
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, seriatim 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.
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); Hatlestead 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. ù 5107(b) (formerly ù 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); Hatlestead, 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. ù
5107(a) (formerly ù 3007(a)); 38 C.F.R. ù 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 unemployability. See Ferraro v. Derwinski,
1 Vet.App. 326, 333 (1991); 33 C.F.R. ù 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.

STEINBERG, Associate Judge, concurring in part and dissenting in part
: I agree with the substance of the Court's opinion, remanding the matter
to the Board of Veterans' Appeals (BVA) in order to correct numerous
errors which the Court's opinion very ably identifies. However, on the
sealing issue, I respectfully dissent in part from the Court's disposition
. I would seal the entire record in this case and recaption the case
using an encoded identifier (such as "GH").
This Court has, in Stam v. Derwinski, 1 Vet.App. 317 (1991),
articulated a standard for deciding sealing motions. That standard was
based partly on an inapposite analogy between this
Court's "role" and that of a federal district court considering a motion
for a protective order under Fed. R. Civ. P. 26(c) and partly on what
seems to me to have been an incomplete analysis of the common law standard
. Apparently recognizing that, the majority opinion here does not apply
the Stam standard or embrace its reasoning. However, although the
majority purports to be balancing "the conflicting demands regarding
access to Court records" (majority op'n, ante, slip op. at 7; see also
ante, slip op. at 8-9), the opinion provides no discernable standard
against which to balance the competing interests. The law under title 38,
U.S. Code, is left in a state of flux, and the outcome of a particular
sealing motion in the future is thus unpredictable. Although the law is
seldom fully predictable, the continuation of uncertainty in the area of
confidentiality of this Court's records, particularly when sensitive
medical treatment records are involved, has much potential for prejudice
to claimants in future benefits proceedings or treatment processes, as
discussed in detail below.

I. Rule 26(c) Presumption of Public Access to Discovery
The Court's opinion in Stam analogized this Court's role when an
appellant seeks to seal the record before the Court to that of a federal
district court when a party seeks a protective order under the "good cause"
standard of Rule 26(c).[ Fed. R. Civ. P. 26, entitled "General
Provisions Governing Discovery", provides in pertinent part in subsection (
c) entitled "Protective Orders":
Upon motion by a party or by the person from whom discovery is sought
and for good cause shown, the court in which the action is pending
. . . may make any order which justice requires to protect a party
or person from annoyance, embarrassment, oppression, or undue burden
or
expense, including . . . (8) that the parties simultaneously file
specified documents or information enclosed in sealed envelopes to be
opened as directed by the court.
Fed. R. Civ. P. 26(c) (emphasis added).
] The "good cause" standard was defined in Stam as requiring the
articulation of "specific facts showing 'clearly defined and serious
injury'". Id. at 320 (quoting Avirgan v. Hull, 118 F.R.D. 252, 253 (1987)).
However, this Court neither presides over civil discovery matters
between private parties, nor operates under rules comparable to the
Federal Rules of Civil Procedure. Since Rule 26 applies only to the
discovery process, the Rule 26(c) "good cause" standard required of
parties before documents may be sealed by a district court has no
application to matters coming before
this Court. Moreover, the federal courts construing Rule 26(c) have held
that it does not apply to the sealing of material obtained outside of the
discovery process in the case in which the protective order is sought
.[ See, e.g., Bridge C.A.T. Scan Associates v. Technicare Corp., 710
F.2d 940, 945 (2d Cir. 1983) (Rule 26(c) does not authorize disclosure of
materials not obtained through discovery process); Kirshner v. Uniden Corp.
of America, 842 F.2d 1074, 1080 (9th Cir. 1988) (citing Bridge): Mary Kay
Ash v. Commissioner, 96 T.C. 459 (1991) ("cases construing Rule 26(c) . . .
uniformly hold that [it] provides no authority for the issuance of
Protective Orders to regulate the use of information or documents obtained
through means other than discovery in the proceedings before the Court");
4 J. Moore, J. Lucas, and G. Grotheer, Jr., Moore's Federal Practice 26.
78 at 26-503, 26-504 ("provision for protective orders in Rule 26(c) is
plainly limited in its application to protection from abuses flowing from
the employment of the discovery rules").] Hence, I find no basis for
Stam's analogy to, let alone reliance on, Rule 26(c)'s "good cause"
standard in determining the standard that appellants must meet when
seeking to seal records in this Court.
Rather, guidance beyond the statutory provisions directly applicable
to this Court should be drawn only from the common law standard applicable
to the sealing of court papers and records. On this much, I believe the
majority opinion and this opinion are in agreement. The majority opinion,
for example, although not articulating a standard, does not purport to be
applying the Stam "good cause" standard or the Avirgan v. Hull "clearly
defined and serious injury" criterion.

II. The Common Law
Putting Stam's reference to Rule 26(c) aside, its basic premise and
that of the majority opinion here appear to be that the statutory mandate
of this court with regard to public access to judicial records merely
codifies the existing common law presumption. Stam, 1 Vet.App. at 319.
However, neither the Court's analysis in Stam nor the majority opinion
here analyzes how the common law should be applied in a way that will be
consistent with both the statutory mandate as to the records of this Court,
specifically
38 U.S.C. ù 7268(a) and (b) (formerly ù 4068), and this Court's
underlying purpose, discussed in parts III and IV below.
As to the common law right of public access to judicial records, in
its ruling in Nixon v. Warner Communications, 435 U.S. 589 (1978), the
Supreme Court left the sealing decision to the
discretion of the trial court to be exercised in light of the relevant
facts and circumstances.[ See infra note 7.] In the ensuing efforts
to fill the vacuum left by the Nixon case, much tension has developed
among the federal courts of appeals in fashioning standards by which to
make sealing determinations. In the case relied upon by the Court in Stam
for its statement of the standard under which the common law presumption
of public access would give way, the Ninth Circuit discussed the disparate
standards adopted by various circuits. Valley Broadcasting Co. v. United
States District Court, 798 F.2d 1289, 1293-94 (9th Cir. 1986).[
Although Valley Broadcasting arose in the context of a criminal trial, it
is no less applicable to civil matters. The court there did not
distinguish between access to civil and criminal documents. Moreover,
although Nixon involved public access to evidence admitted in a criminal
trial, it is uniformly cited in civil cases addressing the common law
right of public access to judicial records. See, e.g., Bank of America
Nat. Trust v. Hotel Rittenhouse Assocs., 800 F.2d 339, 343 (3d Cir. 1986) ("
common law presumption of access encompasses as well all 'civil trials and
records'"); Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d 1165, 1178 (
6th Cir. 1983) (same), cert. denied, 465 U.S. 1100 (1984); Publicker
Industries, Inc. v. Cohen, 733 F.2d 1059, 1066 (3d Cir. 1984) ("[The]
common law right of access to judicial proceedings and records usually has
been considered by the Supreme Court in connection with criminal trials
and proceedings . . . . However, an examination of the authority on which
the Supreme Court relied in these cases reveals that the public's right of
access to civil trials and records is as well established as that of
criminal proceedings and records.").] In so doing, the Ninth Circuit
distilled an area of dispute in the law and referred to what it found to
be extreme tests at either end of the spectrum "that contain built-in
biases for or against disclosure." Valley Broadcasting, 798 F.2d at 1293.
The test biased for public access was represented by the Second Circuit's
position:
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.
In re National Broadcasting Co., 635 F.2d 945, 952 (2d Cir. 1980) (
footnotes omitted) (emphasis added).
The bias against access was embodied in the approach of the Fifth
Circuit in Belo Broadcasting Corp. v. Clark, 654 F.2d 423 (5th Cir. 1981).
There, the Fifth Circuit balanced the competing interests -- the "
nonconstitutional right of physical access to courtroom exhibits and a
defendant's due process right to a fair trial". 654 F.2d at 432. It then
declared that it disagreed
with the standards employed by the Second and D.C. Circuits[ The D.
C. Circuit case was In re Application of Nat'l Broadcasting Co. (United
States v. Jenrette), 653 F.2d
609 (D.C. Cir. 1981).] in similar cases involving access in the context of
an FBI operation:
Our fundamental difference with both these cases lies in their
holdings that 'only the most compelling circumstances' should prevent
access to these tapes and that the party opposing access must
demonstrate that 'justice so requires'. . . . In our judgment, the
opinion in Nixon v. Warner Communications, offers no basis from which
one can derive the overpowering presumption in favor of access
discovered by the Second and District of Columbia Circuits. The
Supreme Court there neither drafted explicit limits nor assigned
specific weight to this common law right of access . . . . It did
not find the existence of the right conclusive . . . . Rather, we
read the Court's pronouncements as recognizing that a number of
factors may militate against public access. In erecting such stout
barriers against those opposing access and in limiting the exercise
of the trial court's discretion, our fellow circuits have created
standards more appropriate for protection of constitutional than of
common law rights.

Belo Broadcasting, 654 F.2d at 433-434 (footnotes omitted).[ The
reference in Belo Broadcasting above to protection of constitutional
rights is significant, since neither Nixon nor any other case has
established an absolute constitutional right of access to court materials.
In addition, in Seattle Times Co. v. Rhinehart, 467 U.S. 20, 36 (1984),
the Supreme Court held, in addressing Fed. R. Civ. P. 26(c), which relates
only to civil discovery, that its provision for protective orders as to
material produced in discovery does not require "heightened First
Amendment scrutiny". ]
Despite the Ninth Circuit's characterization in Valley Broadcasting,
798 F.2d at 1293, of the Fifth Circuit's Belo balancing standard as rather
extreme, both the Third and Fourth Circuits generally have seemed to
endorse a balancing approach, similar to the Fifth Circuit's, between
competing interests.[ See Bank of America Nat. Trust v. Hotel
Rittenhouse Assocs., 800 F.2d 339, 344 (3d Cir. 1986) ("strong common law
presumption of access must be balanced against the factors militating
against access"); Littlejohn v. BIC Corp., 851 F.2d 673, 678 (3d Cir. 1988
) (quoting Bank of America) ("'the strong common law presumption of access
must be balanced against the factors militating against access'"); Stone v.
Univ. of Md. Medical System Corp., 855 F.2d 178, 180 (4th Cir. 1988) ("
common law presumption of access [to judicial records] may be overcome if
competing interests outweigh the interest in access").]
Between the two poles, as characterized in Valley Broadcasting, the
Ninth Circuit chose "[t]he middle-ground stance", under which a "'strong
presumption'" exists "in favor of access,
to be overcome only 'on the basis of articulated facts known to the court,
not on the basis of unsupported hypothesis or conjecture.'" Valley
Broadcasting, 798 F.2d at 1293 (quoting Nixon and United States v. Edwards (
In re Video-Indiana, Inc.), 672 F.2d 1289 (7th Cir. 1982). This seems to
have been the standard adopted by the Court in Stam. But, several
problems emerge from Stam's reliance on Valley Broadcasting for the
standard which supplied the basis of the Court's holding.
First, in Stam, the Court cited Valley Broadcasting for the
proposition that the moving party must demonstrate a "cognizable privacy
interest, which has been described by the courts as being based on
articulable facts rather than on unsupported hypothesis or conjecture" and
which is of sufficient significance to overcome the presumption of public
access to judicial records." Stam, 1 Vet.App. at 318, 320. However,
nowhere did Valley Broadcasting require that "a cognizable privacy
interest" be demonstrated. It required only that "articulable facts known
to the court" serve as the basis for a request. Valley Broadcasting, 798
F.2d at 1293. That case had little to do with "privacy interests".
Rather, the sealing issue arose because of the district court's fears of
administrative inconvenience caused by access, problems in impaneling an
unbiased jury, and difficulty in keeping a jury unbiased in the face of
trial publicity. Valley Broadcasting, 798 F.2d at 1294-95.
Second, the Stam opinion did not explain why it settled on a standard
in which appellants must establish "a cognizable privacy interest of
sufficient significance to overcome the presumption". Id. at 318, 320.
The Supreme Court in Nixon had declined to delineate such a precise
standard,[ Nixon stated: "It is uncontested . . . that the right to
inspect and copy judicial records is not absolute". In cases in which a
common law right of public access has been recognized, however, the courts
have "recognized . . . that the decision as to access is one best left to
the sound discretion of the trial court . . . to be exercised in light of
the relevant facts and circumstances of the particular case." Nixon, 435
U.S. at 589-599.] and the courts of appeals, as noted above, have adopted
a wide variety of approaches to the issue.[ In many of the cases
cited in this opinion (text and footnotes) where courts have decided in
favor of the public's right of access to judicial records, parties
challenged the sealing orders for the purpose of gaining access to the
records to disseminate the information to the public in light of the
significant public interest surrounding the underlying issue. See, e.g.,
Nixon v. Warner Communications, 435 U.S. at 602 (common law right of
access not decisive, because issue of access to Nixon tapes regulated by
Presidential Recordings Act, but if access were
decided according to the common law, "the incremental gain in public
understanding of an immensely important historical occurrence" would weigh
in the balance, as would the risk that courts could become partners in
using judicial records to gratify private spite or promote public scandal);
Publicker Industries, Inc. v. Cohen, 733 F.2d at 1074 ("presumption of
openness plus the policy interest in protecting unsuspecting people from
investing in Publicker in light of its bad business practices are not
overcome") Brown & Williamson Tobacco Corp. v. FTC, 710 F.2d at 1180 (
Public Citizen Health Research Group urged court to lift or modify seal
placed by district court on administrative record and all other documents
filed by FTC and court did so, stating, "common sense tells us that the
greater the motivation a corporation has to shield its operations, the
greater the public's need to know. . . . [The information] potentially
involves the health of citizens who have an interest in knowing the
accurate 'tar' and nicotine content of the various brands of cigarettes on
the market"); In re Application of Nat'l Broadcasting Co., 635 F.2d at 952 (
regarding right of television station to copy and televise videotapes
entered into evidence in first "Abscam" case, "there remains a legitimate
and important interest in affording members of the public their own
opportunity to see and hear evidence that records the activities of a
member of Congress and local elected officials, as well as agents of the
Federal Bureau of Investigation"). In the instant case, no individual,
member of the media, or public interest organization -- or the Department
of Veterans Affairs for that matter -- has challenged the motion to seal;
nor does an issue of significant public interest reside in the documents
at issue. Challenges to motions to seal and underlying issues of
significant public interest are not likely to arise generally in veterans
benefits appeals. This factor alone suggests caution in adopting common
law standards crafted in cases where there was a contest over the sealing
question.]
Although I believe the majority opinion here has correctly eschewed
the standards espoused in Stam in reliance on Valley Broadcasting, the
majority provides no explicit guidance for the resolution of future
sealing motions. Rather, the appellant's reasons here are found "
sufficiently compelling" to warrant sealing or removing from the record
almost all of the records he seeks to withhold from the public. Majority
op'n, ante, slip op. at 8. Drawing instruction from a Tax Court decision,
the majority seems to hold that the "presumptively paramount" "interests
of the public" in access are outweighed by the appellant's "showing that
there are countervailing interests sufficient to outweigh the public
interest in access." Ibid. The only showing that the appellant has made,
however, is "his allegation of embarrassment, humiliation, or hesitancy to
pursue a claim" that the majority states is not enough "to properly
balance the conflicting demands regarding access to court records." Ante,
slip op. at 7.
Applying the old adage to watch what the Court does, not what it says,
I conclude that the majority and I are basically in agreement that in this
Court an appellant's facially reasonable allegation that embarrassment or
humiliation are likely to result from public release of previously
confidential medical records is a sufficient showing by an appellant to
overcome the public's interest in access to those judicial records. Cf.
United States Department of State v. Ray, 60 U.S.L.W. 4047 (U.S. Dec. 16,
1991) (Haitian interviewees' concern about embarrassment in their
social and community relationships if State Department interviews were
made public was found to be a sufficiently significant privacy interest to
justify Government withholding identifying information, under exemption 6
of the Freedom of Information Act (FOIA), from 17 of 25 documents produced
pursuant to FOIA request). Where we seem to disagree, then, is on how we
reach that conclusion and what should be the remedy. If I am wrong as to
the meaning of the majority opinion, future appellants are left totally in
the dark as to the justification they must marshal in seeking to restrict
public access in their cases. In any event, this is an area that I
believe requires a bright-line rule stated with clarity, see the
discussion in part IV, below, and the Court's opinion unfortunately falls
far short in that regard.

III. Interaction Between the Common Law and the Statutory Scheme
In the Veterans' Judicial Review Act (VJRA), Congress provided this
Court with broad authority to "prevent the disclosure of confidential
information" in its judicial records. 38 U.S.C. ù 7268(b)(1) (formerly
ù 4068); VJRA, Pub. L. No. 100-687, ù 301(a), 102 Stat. 4102, 4116 (1988
). In doing so, Congress did not specify any special standard or require
any special showing regarding the sealing of a record. Section 7268 seems
to conform to the common law in so far as setting out a presumption for
public access. Majority op'n, ante, slip op. at 5; See Stam, 1 Vet.App.
at 319. But I question the applicability to our statutory scheme of any
further common law analysis.
As have the district and circuit courts which have sought to refine
the contours of the access right, Congress in the VJRA enacted 38 U.S.C.
ù 7268 to provide for situations where a claimant's interest in
confidentiality may overcome the presumption:
(a) Except as provided in subsection (b) of this section,
all decisions of the Court of Veterans Appeals and all briefs,
motions, documents, and exhibits received by the Court (
including a transcript of the hearings) shall be public records
open to the inspection of the public.

(b)(1) The Court may 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.
(Emphasis added.)
In Stam, the Court made only passing reference to this Court's
statutory mandate with regard to accessibility of Court records. Id. at
319. The majority here remedies that omission by recognizing the Court's
broad statutory discretion to "make any provision which is necessary to
prevent the disclosure of confidential information". 38 U.S.C. ù 7268(b) (
emphasis added); majority op'n, ante, slip op. at 5.
Although I agree that this Court must, as do the district courts,
engage in a balancing process, the nature of this Court as an Article I
court must inevitably shape the standards we develop to articulate the
competing factors. We should be guided by the special statutory mandate
defining the Court's role, and by the nature of litigation here in which
an appellant reaches the first judicial step only after having followed a
long progression of statutorily mandated confidential processes which
exist to protect veterans seeking benefits from the Department of Veterans
Affairs (VA). And we should be most cautious about adapting to our
processes common law standards developed in the context of contested
sealing motions involving documents relating to issues of significant
public interest.[ See supra note 8.]
In analyzing section 7268, the first question that arises is, what
did Congress mean by "confidential information"? At the time Congress
used these words in November of 1988 in the VJRA, section 3301 (since
redesignated 5701) of title 38, U.S. Code, already provided clear
direction as to protecting confidential records. Subsection (a) of that
section provided and currently provides:
(a) 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.
(Emphasis added.)[ Subsection (b) of section 3701 then
listed six specific situations in which such documents are not
confidential and privileged. Paragraphs (2) and (5) provided
as exceptional circumstances exempt from confidentiality the
following:

(2) When required by process of a United States court to be produced
in a suit or proceeding therein pending. . . .
(5) In any suit or other judicial proceeding when in the judgment of
the [Secretary] such disclosure is deemed necessary and proper.
Accordingly, the Secretary of Veterans Affairs was authorized to make
disclosure of documents deemed confidential under subsection (a) of
section 3701 when required by process of a United States court, including
this Court, or in connection with any judicial proceeding when the
Secretary deems disclosure "necessary and proper". Neither of these
exceptions much illuminate the issue before us in this case, however. ]
Thus, Congress was not utilizing the term "confidential information"
in a vacuum when it enacted section 4068 (now section 7268) in the VJRA.
The use in that section of the same term, "confidential", as was then
contained in section 3301 suggests that the Court would be well within the
proper exercise of its authority if it adopted a standard for ruling on
sealing motions that generally maintained the confidentiality of much or
at least some of the information VA holds confidential in its benefits
files. In adopting such a standard, the Court would be acting in a manner
consistent with the nature of the particular judicial responsibilities and
functions we are exercising and, very importantly, the legitimate
expectations of the parties. These expectations are of great importance
in these cases. Cf. United States Department of State v. Ray, 60 U.S.L.W.
at 4051 (Haitian interviewees' expectation of confidentiality also a
significant privacy interest bearing on Court's decision to allow
Government to redact identifying information from interview summaries
requested under FOIA).
In Stam, this Court quite properly pointed out that "a claimant
filing a claim with VA has the expectation that the records will be kept
confidential." Id. at 319. That expectation derives not only from the
specific statutory protections in what is now section 5701 quoted above,
but from the generally nonadversarial and informal nature of the VA
adjudication process. See Littke v. Derwinski, 1 Vet.App. 90, 91 (1990);
38 C.F.R. ù 3.103(a) (1991).
According to Stam, "[t]here is, however, an entirely different set of
considerations with respect to the confidentiality of records filed with
this Court because of the presumption that the
public is entitled to access to judicial records." Id. at 319. I am not
in agreement with this statement for two reasons. First, as stated above,
I believe this Court has been given wide discretion to fashion a rule
under section 7268. Second, unless a VA claimant is informed specifically
that the nature of the process is going to change when and if he or she
files an appeal to this Court, it is completely unfair to change the rules
in mid-stream when the claimant has been lead repeatedly by VA throughout
the adjudication process to believe that that process is a special
protective one where the records are privileged. Although the majority
opinion, ante, slip op. at 5, discusses section 7268, it does not deal
with the strong expectation of privacy and privilege that is encouraged on
the part of VA claimants. For example, even the decisions of the rating
board or the BVA may not generally be made public unless appropriately
redacted. See 38 C.F.R. ù 1.554(a) (1991) (release of "public"
information by VA "after deletion of the portions which are exempt").
This expectation of privacy extends particularly to records, such as
medical records, that are traditionally considered to be confidential and
are generally extended special protection by VA regulations. See 38 C.F.R.
ùù 1.513, 1.513(a), 1.514, 1.514a, 1.554, 1.554(a)(6), (7) (1991).[
A VA claimant's expectation of confidentiality in his relationship with VA
derives from an elaborate regulatory structure in 38 C.F.R. ù 1.500
through ù 1.527 and ù 1.576 that is based on the premise that "[f]iles,
records, reports and other papers and documents pertaining to any claim"
filed with VA "will be deemed confidential . . . except in the
circumstances . . . set forth in" the regulations. 38 C.F.R. ù 1.500(a) (
1991). Information in medical records is afforded special protection.
See 38 C.F.R. ùù 1.513, 1.513a, 1.514, 1.514a, 1.554(a)(6)(7) (1991).
Such VA medical record information is not to be disclosed even to the
veteran when that "would prove injurious to his or her physical or mental
health." 38 C.F.R. ùù 1.513(b)(ix) (1991); see also 38 C.F.R. ùù 1.
522, 1.577(d). Claim file information may not be disclosed even to a
designated recognized service
organization unless "the power of attorney . . . contains an authorization
permitting such disclosure." 38 C.F.R. ù 1.525(e) (1991).] During the
Department adjudication process, moreover, VA has an affirmative
obligation to inform veterans about all benefits to which they might be
entitled, see 38 U.S.C. ù 241(2) (1988), and to "assist . . . claimant[s]
in developing the facts pertinent to the claim." 38 U.S.C. ù 5107(a) (
formerly ù 3007); 38 C.F.R. ùù 3.103(a), 3.159 (1991); see Littke, 1
Vet.App. at 91-92; Murphy v. Derwinski, 1 Vet.App. 78, 80 (1991); Moore v.
Derwinski, 1 Vet.App. 401, 405 (1991); Godwin v. Derwinski, 1 Vet. App.
419, 425, 427 (1991). This duty extends by regulation to requiring a VA
hearing officer to "explain fully the issues and suggest the submission of
evidence which the claimant may have overlooked and which would be of
advantage to the
claimant's position". 38 C.F.R. ù 3.103(c)(2) (1991). See DouglasNext Document v.
Derwinski, __ Vet.App. __, No. 90-678, slip op. at 11-12 (U.S. Vet. App.
Jan. __, 1992). How ironic that these protective and paternalistic
obligations imposed on VA to benefit its claimants has much potential to
cause embarrassment and humiliation to those claimants if they exercise
their right to judicial review.
Furthermore, from a larger perspective, I believe there is no general
public interest to be served in publicly disclosing available medical
information about a VA claimant. This contrasts with many of the seminal
cases in the area of public access where there was a significant public
interest being asserted actively by an adverse party seeking access to
court records.[ See supra note 8 regarding the absence of an
underlying issue of significant public interest in the instant case or
other cases likely to be appealed here.] In this respect, I see little
difference between information derived from private medical records and
information derived from VA medical records. However, there is an even
greater obligation, I suggest, to maintain the confidentiality of VA's own
treatment records (or medical records of private providers functioning
under contract with VA). Otherwise, there is substantial danger that
entitlements to VA treatment will be compromised. If veteran patients,
fearful that their medical records might later be made public or that
information from them might be published in a Court opinion, feel
constrained in their communications with their treating VA physicians and,
therefore, fail to communicate openly and fully with them, the efficacy of
their treatment by VA could well be impaired. This, in turn, could lead
to an aggravation of their disabilities or at best a continuation of them
without improvement.
This concern is extremely important in certain sensitive areas, such
as information relating to mental health (the issue in the instant case),
sexual dysfunction, and possible criminal activity, as well as the areas
specifically protected from disclosure in 38 U.S.C. ù 7332 (formerly
section 4132) -- drug abuse, alcoholism or alcohol abuse, infection with
the human immunodeficiency virus, or sickle cell anemia, which are
required to be presumptively sealed under Rule 48(b) of the Court's Rules
of Practice and Procedure, quoted below. Hence, I would be inclined to
seal the entire record in any case in which the appellant moved for such
sealing on the basis of potential
embarrassment or humiliation from making public any of the three types of
sensitive VA or private medical records I have listed that are not already
presumptively protected by section 7332.

IV. Implications of Sealing a Record
The process established for the sealing of a record on appeal to this
Court is set forth in this Court's Rules of Practice and Procedure. Rule
11(c)(2) provides:
(2) Confidential Information. On its own initiative or on
motion of a party, the Court may take appropriate action to
prevent disclosure of confidential information. See also Rule
48.
U.S. Vet.App. R. 11(c)(2). The Court's Rule 48(b) provides a procedure by
which sealing under Rule 11(c)(2) may be carried out:
The procedures described in this rule [48] may, in the Court's
discretion, be applied to cases that the Court orders sealed
but which do not contain records protected by 38 U.S.C. ù [
7332].
U.S. Vet. App. R. 48(b). Subsection (a) of Rule 48 provides:
(a) If, during the time periods set out in Rule 10 or at
any other time during a proceeding before the Court, the
parties identify records protected by 38 U.S.C. ù [7332] and
at least one of the parties believes that disclosure of such
records is required in such proceeding and, further, the
parties cannot agree with respect to the disclosure of such
records, the party requesting disclosure shall make immediate
application therefor, pursuant to 38 U.S.C. ù [7332](b)(2)(D),
caption the case "In re Sealed Case No. [insert Court of
Veterans Appeals case number]"(not disclosing the identity of
any individual), and serve on the protected patient or subject
or successor in interest a copy of the application. Such
application must include a statement specifying those steps
taken by the parties to reach agreement before application was
made to the Court. Upon receipt of such application, the Clerk,
unless otherwise ordered by the Court, shall enter the case as "
withdrawn" on the docket, assign a new case number and
recaption the case using an encoded identifier, and seal the
record on appeal and the file of the Court. Thereafter, any
party or representative of a party, unless otherwise ordered by
the Court, shall refer any subsequent filing only to the new
case number and caption assigned by the Clerk.
U.S. Vet. App. R. 48(a) (emphasis added).
Under these Court rules, the sealing of an entire Court record
entails giving the case an alphabetized name, such as was done in EF v.
Derwinski, 1 Vet.App. 324, 325 (1991), and removing the records from
public access. In addition, sealing the entire record entails protecting
an appellant from the Court's disclosure of medical treatment information
in its opinion. Although I am sure that the majority opinion has
attempted to avoid such disclosures in the instant case, it nevertheless
refers at least eight times to the appellant's "schizophrenia" or "chronic
paranoid schizophrenia" and twice to "hyper" or "marked" "religiosity" and
to his having been "delusional". It is true that the appellant did not
request a sealing of the entire record, but the concerns he expressed in
his February 22, 1991, motion to the Court, quoted in part V, below,
fairly read, extend as well to these types of disclosures about his mental
health. Given his precarious mental situation, we cannot expect him,
proceeding pro se, to understand fine distinctions between the
implications of a partial sealing and a full sealing of the record.
In actuality, sealing a record involving such sensitive personal
information may result in the writing of a more readily understood opinion,
since the Court might feel at greater liberty to disclose certain
sensitive background information pertinent to the disposition of the case.
In contrast, where the record is not sealed, there might be some
reluctance to disclose some of those details in the Court's opinion.

V. Conclusion
In sum, I find it difficult to divine the interest of the public in
gaining access to a veteran's hitherto confidential medical records or
information from them.[ See supra note 8.] (Here, no party is
seeking that access, and the Government does not oppose sealing).
Consequently, I believe this Court should adopt a standard which is best
suited to carrying out the purposes of the authorizing law establishing
this Court and providing for its jurisdiction -- that is, to provide an
opportunity for independent and objective review of VA benefits claims.
134 Cong. Rec. S16642, S16643 (daily ed. Oct. 18, 1988) (statement of Sen.
Cranston) ("[o]ne of the principal reasons judicial review is needed is to
help ensure fairness to individual claimants before the VA"); 134 Cong.
Rec.
H10342 (daily ed. Oct. 19, 1988) (statement of Rep. Montgomery).
Otherwise, there is a real risk that the uncertainty engendered by Stam
and the majority opinion here in terms of future guidance will serve the
opposite result. Not knowing whether they will be able to obtain a sealed
record in this Court, potential VA claimants with certain kinds of medical
problems may well choose to refrain from (1) seeking VA treatment, (2)
disclosing information to their treating VA physicians, or (3) bringing
their cases to this Court on appeal after receiving an adverse BVA
determination. They would make such unfortunate choices in order to avoid
having the previously confidential information in their VA or other
medical files made public in this Court's opinions or made available to
the public in this Court's records.
Hence, in determining sealing motions, I would start with a scale
basically in balance, as the Fifth, Third, and Fourth Circuits have
suggested (in Belo Broadcasting, Bank of America, Littlejohn, and Stone
[ See supra note 6.]), and in each case, as the result reached by
the majority suggests it may have done here, place on the scale the
interests in public access on one side and the interests militating
against access on the other side. By and large, I believe that the
interest in public access will generally be a theoretical one in the
sealing motions likely to come before this Court.
Turning to the facts of this case, in his statement filed on February
22, 1991, asking that 93 of the 157 pages of the record on appeal be
sealed, the appellant, proceeding pro se, stated:
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 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 VA 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.
Statement of Appellant at 1. For the reasons stated above, I would seal
the entire record and assign an encoded caption to the case because of the
sensitive information in the record derived from confidential VA medical
records.
I respectfully dissent from the Court's piecemeal approach which may
result in a comparable degree of humiliation or embarrassment for the
appellant as a result of the information set forth in the Court's opinion.
I find no good reason to occasion that risk here in order to vindicate a
theoretical presumption of public access to judicial records that has very
little to do with the reality of this case.