"Evidence of a temporary flare-up, without more, does not satisfy the level of proof required"
How later courts described this case
- "Evidence of a temporary flare-up, without more, does not satisfy the level of proof required"
Written by the judges who cited it.
The opinion
MANKIN, Associate Judge,
dissenting.
It is with greatest respect that I dissent from my learned colleague’s opinion.
The majority does not consider whether the decision here under review is adequately supported by reasons or bases. In effect, the majority holds that “reasons or bases” amounting to little more than that appellant loses, are sufficient under 38 U.S.C. § 4004 (d)(1) (1988) and Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Because I believe that the character of the Board of Veterans’ Appeals (BVA) findings is inadequate to allow meaningful judicial review, I dissent.
I would have thought that the need for strict adherence to the reasons or bases requirement was by now firmly ingrained in the Court’s jurisprudence. Perhaps some of the advantages of this requirement bear repeating. The most obvious advantage, and what is lacking in the present case, is that reasons or bases inform the veteran and this Court how the BVA arrived at its ultimate decision. In addition, this requirement is the best way to avoid carelessness by the BVA. See United States v. Forness, 125 F.2d 928, 942 (2d Cir.1942) cert. denied, 316 U.S. 694 , 62 S.Ct. 1293 , 86 L.Ed. 1764 (1942).
The reasoning of the BVA with regard to aggravation is contained exclusively in the following sentences:
During service the appellant underwent hospitalization due to the presence of psychotic symptoms which included delusions, agitated behavior and paranoid reaction. Clearly these recurrent psychotic symptoms are consistent with his preser-vice psychiatric disability and they represent an acute exacerbation of this disability.
In light of the forgoing, we are of the opinion that the appellant’s psychiatric disability ... did not increase in severity as a result of this service.
Michael E. Green, loc. no. 918794, at 5 (BVA July 7, 1989). It is simply not possible from those statements to affirm the BVA’s decision without resort to speculation. In substance the only information *324 these statements convey is that the BVA concluded that appellant’s condition was not aggravated. This is merely a rephrasing of the finding at issue. The BVA’s error in this case may have prejudiced the veteran. There is no dispute that schizophrenia can be aggravated; the Secretary has established six levels of disability for “Schizophrenia, paranoid type.” 38 C.F.R. § 4.132 , Diagnostic Code 9203 (1990). There is evidence that appellant’s condition did deteriorate as a result of service (see R. at 42), thus presenting questions of evidence that we should not resolve initially on appeal. Indeed, the majority may have misunderstood the medical issue: it is not the quality of appellant’s symptoms which is primarily at issue but rather the frequency of those symptoms. Appellant claims he suffers recurrences more frequently now than prior to service. Appellant’s Br. at 13-14.
If the Court decides that its role is merely to search the record for some plausible basis to support global findings, not only will we have failed in our responsibilities, but we will encourage the type of vague BVA decisions which are all too common. Although our role is limited, we must insist that the decisions which we review allow us to comply with the role mandated by the Congress. Cf. Hale v. Bowen, 831 F.2d 1007, 1010 (11th Cir.1987) (federal courts must not “act as automatons” in reviewing the decisions of the Secretary of Health and Human Services). I am aware that the BVA has a large volume of cases, but in view of the serious nature of the claims involved, it does not seem too much to insist that the BVA inform the veteran and this Court as to the reasons or bases which underlie its decision. 38 U.S.C. § 4004 (d)(1). Accordingly, I would vacate the BVA decision and remand the case to the BVA.