the morning we have three argued cases this morning and we're going to change the order of the three arguments because the the case in the a why case are so closely related we'd like to hear them consecutively so we'll do the easy hey why in a few years you know our first case is number twenty two well they're seventy forty six circular reasoning that competent evidence of an in service stressor is required to substantiate the veterans claim and that while a lack of corroborating evidence can be a probably eating them and saying that the service records are required so perhaps you could address the question of whether allowing service records in these circumstances to outweigh other evidence really is consistent with the  absence of indication in the record to prove a negative and that is only permissible if the event would normally be recorded in the record and here we have a situation where i think the government admits that typically these sexual assaults within the military are not recorded in the record so it seems like a bit of an armed thing under those circumstances to the only evidence in this case that speaks to the event and service are the better statement herself and the statements from her siblings that were included that the court cho to not give really any property value to and so i think that that trying to prove this with an absence of evidence especially if i'm calling on a question under f five there's a regulation specifically on point to address specifically this type of situation and so when the root of the yeah but it doesn't face of the regulation it doesn't say that you can't use the absence of a service record  as evidence that the sexual assault did not occur the regulation doesn't go quite that far but the history of the regulation and other things do constitute a recognition by the government that in the absence of any evidence and points military records to indicate the occurrence of the event is not the only evidence that errors there's more seem to me there's more in the mix than just the absence of the records and what i understood the presiding judge to be asking was whether or not and or least an argument can be made that the absence of but if if if so that it is highly unlikely if no one really unlikely that a person who is abuse would go and have a record in the record and then the fact that it wasn't recorded doesn't at vanished the  resolution of the question i think that what does that dance the resolution of the question here let me ask you this if we were to if one were to decide that there's category of evidence i e the absence of a notation in the record that the statutory hook could be found in section eleven fifty four which he does because that is the statute that says that the v a must consider late evidence in him in evaluating the evidence of  testimony entirely in the absence of a record those were his chances were it was easy i think incorrect for us to say that the duty to consider leoben was being over by a construction that allowed you to throw out an action confirmatory record but this is a little different situation because the the records are now being considered the decision makers below  not telling us that they're throwing this case out and care only on the basis of the actions of notation on the record i think that they that the board or the court said that they were throwing out because of that although they do you really you know you take it they came really close i especially the court of appeals from actions claims page ten of the record they can very very close to doing that and the focus your honor those the connection to the statute more because we can't be sure as we read this record you are maintaining that the here that the v a did a lot on the absence of a record in that the veterans court also relied on the absence of record but as such clevenger points out that wasn't the only thing they were alive presumably it's not up to us to decide if we were to say that you can't consider the absence of records not up to us to decide what the result would be in the case if they were limited to considering the other evidence in question because we're not supposed to make factual determination absolutely but my recollection may be don't know about this is that there are cases in the veteran's area where we have said certain evidence we standardise have to govern the proceeding and that's you know inherent in the nature of the process and each case has a little bit different for example push my stress disorder you know requires the strengths or events so yes every each case presents a bit of a different evidentiary question but this case presenting evidence your question with a regulation that directly speaks to it and i  so point to the fact that to the event that her witnesses suggest that her behavior changed at the time after the assault they show a series of disciplinary reports that preceded the date of the salt and then continued after to demonstrate that there was no change in her behavior at least as regarded her military supervisors that she was under performing consistently well before the assault through the assault masters assault so at least there is evidence in the record that she was having problems at work before the whole thing ever came to pass sure there was evidence in the record that she was having problems you know because they're saying she became unable to perform normal function severely depressed whatever and that what the record shows is that she had a consistent problem of bad behavior from before the time of the assault and after the time of the assault so what they're pointing to is the military records which do exist for this extent this extent establish that she was struggling before the assault ever occurred and so that doesn't that give relative doesn't that contradict those testimonies such that the board could say the testimony is no longer credible if this other evidence which is evidence of military service record for trial they didn't say that the finder of fact found  but if it's insufficient time i would say that you can and it's instructive here because the reason that they're saying that it was insufficient again in my reading of what the board and what the court in there are saying that they were insufficient because it was thirty years after you know that it was it was relying upon what should we can't that's that's beyond our jurisdiction to do that well certainly they can rely on those things and maybe they could have tossed out the testimony for those reasons the problem is they also relied on the absence of a service so that with them so what we don't know is how the dva would have decided this case had the absence of the military record about their soul been pulled out of the case if the only that the only  datapoint and was used as a data point against your cool you know it's not for us to weigh the significance of that in the mix because we've held in general that that's that's a fact means you don't think you can really deny that there were data points in the room that were held against your client other than the actions arisen but i would say that they were held improperly against my client because they're not data points of anything that the court but i'm trying to board in the court seem to be looking to figure something out for corroboration whereas the only evidence again specifically allowed by the plain language of the regulation the only evidence of the corroboration medical evidence here that speaks to that are the late factors so why isn't that additional evidence upon which they were free to rely to say no service connection it may be but that really does get to it to a factual question but i guess you're alleging that there's nothing to the contrary that's what you were just saying nothing but she does have a diagnosis related to the to the to to the alleged assault and she does have a two thousand for medical examination to diagnose her i didn't read that as being you know in question just because she had some other psychiatric h have in fact the board itself even acknowledged that there is a problem in reporting sexual assaults in its decision itself they they note that sexual assaults are often going to be very reported and may not be found  in my hypothetical and we have a credible testimony from the victim of the assault and there's no reason to doubt the credibility of the of the corroborate or and the only thing on the other side of the fence is that he got it it can't situation in which the v a relied soley on the absence of a record to conclude that the sexual assault did not occur and assume that and then assume the fellows of evidence ito three governs which we understand not strictly how could you then conclude that it was proper to rely on the absence of a record when by the v a s own and leman these things are rarely report  you in that particular situation i think it may be fair to say that you know the that they could rely upon and i think that's fair but but again your honor in a case like this she had reported sexual and physical assault she was repeatedly went to the v a hospital during her pregnancy there is no evidence ever found in the record of physical saul there's no evidence for thirty years even if most of them is also true that among the other things that we've been talking about the board do that if under the federal if the federal rules provide an analogy here how can they were why on the absence of a record when by your own admission it's not typical that these things are recorded in the records of a couple of reasons the federal don't provide an analogy also section in promulgating section three point three zero four s five the v a considered and it was raised the fact that these particular circumstances are rarely considered  very well have said you cannot rely upon the lack of any contemporaneous epp evidence in weighing your decision at the end of the day the war the v a decided to leave these matters to the port and allow the board to weigh it in those particular circumstances a record can be consider where the record in questions a record of a sexual assault where is a save doesn't know it doesn't say that the the three point three four doesn't say that but the v a is require agency recognizes that people who are subjected to these types of skills don't report them they don't report so the fact that it wasn't reported how can that fact be probity of anything the fact that it wasn't reported well something that's rarely reported could occasionally be reported it's going to at least be have some probative value you may say it has very little profound value in the instance where it is reported will then we're not whether or not this particular class of a military record that is to say a notation of a physical or a sexual the say how can that be legally sufficient if it isn't it's a legal question and so this is not a matter of society as a matter of fact that this class of evidence is it was not pro but if there are it's it's weighing in this particular case i mean the board weighing a statement which is very little probably devalue against something else which has you could say has very little protocol is let's say that in the mix of the elements or something was known to be a law known to be a law let's say for because it's unreliable right and so the question we're asking is whether or not there's any reliability to the absence of a medical record in a circumstance where there's been a sexual a to be what's the basis for believing it would be reliable if these things are rarely reported well your honor or where or what the board is weighing in this particular instance is weighing here's a statement submitted improper consideration was removed from the mechs yes to that question if they were yes but nothing again in the actual regulation precludes the consideration of the absence of of an actual record it's a fact which the v a can properly in the board can properly take and sitter ation of it may not be entitled to great weight but it but it has some probative value in the forces a person who's in the circumstances of a hearing here in our case to make a report to him and him to the military records no so in vain or sure i mean somebody if you put in this position that they will they want ever to be able to be able to demonstrate that this particular stressor was harmful is and you're saying well they have to go and put it in the military record no your honor that's incorrect is having probative value is assaulted and you can test a veteran's credibility if a veteran your through so why are the veterans been inconsistent about talking about whether or not this ever happened you can discount the over this but at the veteran is unimpeachable as a matter of find witnesses not believable you do if you consider the testimony that's true under buchanan i mean you can't simply say that you know we may not we we don't need to consider you know their testimony no and i apologize if i if i if i mistakenly stated that if they have their lay statements it's cooperated in those cases they may be able to overcome the lack of a record and it work well in in this particular case it's not necessarily less veteran friend friendly the absence of a record in other cases you know may lend some support to their claim depending upon how they structure and how they explain their claim we actually don't know but i mean this case is definitely weighed against that fact i mean make no mistake it was a factor in which the court wait wait to hear stay statements of her siblings and then filed thirty years later versus you know the lack of any contemporaneous reports nothing in her medical reports indicating that she had been assaulted whether we talk about causation or not whether we talk about you know there's nothing in the records that seems to indicate that there was a problem here the only official records seem to indicate that she was in a in an otherwise consensual relationship with the individual who was the father of their trouble so all of that means that what indicates she was in a consensual relationship well it is what what in this record indicate she was in a consensual relationship and she got pregnant not through married where does it say she wanted to marry the person who assaulted her much or no no that's fair and let me tell you in the one nine hundred seventy s you go to if an army male gynecologist you're pregnant and single and he says to you young supports anything other than she was involved in a consensual relationship and that's how she got pregnant do you think maybe that you overstated quite significantly in that regard you know i mean that there isn't there is help there's you continue to stand by the fact that this record of the four there's not even a consensual relationship  know this is what we're talking about now is whether or not the other evidence would be sufficient if it were properly tested in fact which which was not our job to do that when they threw out the statements of the siblings on the grounds of the thirty years old it made it sound like they thought that the woman had only related this to her siblings thirty after thirty years but in fact in those statements they were still the siblings were saying she told us i'm writing it down now  told us back then and this is not the kind of thing you really forget about you know her sister was this happened to or the border the border state that but i mean nothing was done about it over thirty years i mean this is this is i mean i mean it makes you think she was records there was already are going to mean this and i know it's not for us to decide the facts but throwing this out entirely on the basis thirty years old change me south well in combination with the other evidence i think it is because we don't have an explanation for the thirty and maybe you can speak for the example for this point looking forward what would be what's the harm to the jew to cation of these cases if the absence of the notation on the right or the assault was taken off the off that what what what harm god what we're trying to do is to have a fair adjudication of these very difficult cases and those secretaries regulations recognizes this difficulty on some fruit and there's all sorts of kinds of proof that the veterans can bring in to show what happens right and then the secretary is certainly entitled to rely on military records that that don't deal with what are not the assault took place to deal with her behavior and discipline and that simply notes that sources other than the veterans service records that doesn't necessarily mean all the services are being for example service rather that was falls but again in promulgating the regulation the the notion  of that you cannot rely in the absence of service records was raised with the secretary and the secretary chose not to exclude that as a piece of evidence so i mean congress itself is struggling this question there's legislation pending that would change some of th yes and it basically would make this make this rule consistent with the rules for post traumatic stress disorder in the instances of terrorist activity or hostile military activit requirement corroboration of the structure it requires a different sort of cooperation where the cooperation would be if a if you received and it wouldn't be it wouldn't likely help in this case but it would effectively create  h since this legislation pending at i'm reluctant to give what ultimately it would be but it would change the rules so that if you have a diagnosis of post traumatic stress disorder that would link on that in that would serve as as the evidence that you needed in order to deal with the need or you know so it would it would get rid of the requirement for cooperation so i was going to take a whole lot more away from the secretary than we would actually simply make this class of evidence  honors i do believe that the absence of evidence should be given no weight in that aren't cases and particularly in a veterans case where there's a regulation directly on point well i know in the military those things typically do get reported in the absence of a wrecker's significant and i apologize your honor i should be more specific and the lack of evidence perhaps an excess type of situations that would be something that probably the department of veterans affairs should be able to weigh something like that which i believe and specifically addressed in i don't know if it had to do with nexus but if you can you know absent could be given some sort of weight because there are so many particular reading living learning broader then the absence i don't think that i don't think that you can go any broader than that especially in this case because the regulation does speak directly to it because it the absence of a corroborated stressor is specifically contemplated by the entire structure of this type of situation under at five and all that has to happen is that it needs to get to a point where it's as likely as not or that i will poison that helps veterans out so i do think that in this particular case where the regulation directly speaks to the lack of a corroboration should