United States Court of Appeals 

for the Federal Circuit ______________________ 

AZ,

Claimant-Appellant,

v.

ERIC K. SHINSEKI, Secretary of Veterans Affairs,

Respondent-Appellee.

______________________ 

2012-7046

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 10-2393, Judge Lawrence B. 

Hagel. 

 

- - - - - - - - - - - - - - - - - - - - - - 

AY, 

Claimant-Appellant, 

v.

ERIC K. SHINSEKI, Secretary of Veterans Affairs, 

Respondent-Appellee. 

______________________ 

2012-7048

______________________ 
2 AZ v. SHINSEKI

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 10-2390, Chief Judge Bruce E. 

Kasold. 

______________________ 

Decided: September 30, 2013 

______________________ 

ZACHARY M. STOLZ, Chisholm, Chisholm & Kilpatrick, 

of Providence, Rhode Island, argued for claimantappellant in appeal no. 2012-7046. On the brief was SEAN 

A. RAVIN, of Washington, DC. Of counsel was KENNETH M.

CARPENTER, Carpenter, Chartered, of Topeka, Kansas. 

STEVEN M. MAGER, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department 

of Justice, of Washington, DC, argued for respondentappellee. With him on the brief were STUART F. DELERY, 

Acting Assistant Attorney General, JEANNE E. DAVIDSON, 

Director, and KIRK T. MANHARDT, Assistant Director. Of 

counsel was ELIZABETH M. HOSFORD, Senior Trial Counsel. Of counsel on the brief were DAVID J. BARRANS, Deputy Assistant General Counsel, and TRACEY P. WARREN, 

Attorney, United States Department of Veterans Affairs, 

of Washington, DC. 

 ______________________ 

KENNETH M. CARPENTER, Carpenter, Chartered, of 

Topeka, Kansas, argued for claimant-appellant in appeal 

no. 2012-7048. On the brief was SEAN A. RAVIN, of Washington, DC. 

STEVEN M. MAGER, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department 

of Justice, of Washington, DC, argued for respondentappellee. With him on the brief were STUART F. DELERY, 

Acting Assistant Attorney General, JEANNE E. DAVIDSON, 
AZ v. SHINSEKI 3

Director, and MARTIN F. HOCKEY, JR., Assistant Director. 

Of counsel was ELIZABETH M. HOSFORD, Senior Trial 

Counsel. Of counsel on the brief were MICHAEL J.

TIMINSKI, Deputy Assistant General Counsel, and TRACEY 

P. WARREN, Attorney, United States Department of Veterans Affairs, of Washington, DC. 

______________________ 

 

Before DYK, CLEVENGER, and MOORE, Circuit Judges.

Opinion for the Court filed by Circuit Judge DYK. 

Dissenting opinion filed by Circuit Judge MOORE. 

DYK, Circuit Judge. 

Veterans AZ and AY filed claims with the Department 

of Veterans Affairs (“VA”) seeking disability compensation 

for post-traumatic stress disorder (“PTSD”) alleged to 

have resulted from sexual assaults that occurred during 

service. The veterans’ service records do not reflect any 

reports of the alleged sexual assaults. The VA Regional 

Office (“RO”), Board of Veterans’ Claims (“Board”), and 

the Court of Appeals for Veterans Claims (“Veterans 

Court”) rejected the claims in part on the ground that the 

veterans’ service records did not include reports of the 

alleged assaults, and because the veterans stated that the 

assaults were never reported to military authorities. 

The veterans argue that the Board and Veterans 

Court erred by treating the absence of reports of the 

alleged sexual assaults as pertinent evidence that the 

assaults did not occur. We agree with the veterans that 

the absence of a service record documenting an unreported sexual assault is not pertinent evidence that the sexual 

assault did not occur. We further hold that the Board and 

Veterans Court may not rely on a veteran’s failure to 

report an in-service sexual assault to military authorities

as pertinent evidence that the sexual assault did not 

occur. We vacate and remand.
4 AZ v. SHINSEKI

BACKGROUND

I. AZ 

Appellant AZ served honorably on active duty from 

March 1973 to July 1974. She was pregnant when she 

left service, and gave birth to a daughter in October of 

1974. In 2004, she was diagnosed with psychiatric problems including PTSD. She attributes her PTSD to sexual 

and physical abuse by the father of her child, a noncommissioned officer of superior rank:

While in the service, I was sexually assaulted and 

beaten by Sgt. [J.H., a superior non-commissioned 

officer]. I became pregnant after one of the sexual 

assaults on about January or February 1974. On 

October 21, 1974, I had a daughter as a result of 

one of the sexual assaults.

AZ J.A. 242 (Feb. 2004 Statement in Support of Claim). 

She allegedly began having nightmares while still in 

service. AZ did not report the alleged sexual assaults to 

military authorities, and her service records do not reflect 

any report of an assault. However, as discussed below, 

there is evidence that the alleged assaults were disclosed 

contemporaneously to AZ’s family members. 

In February 2004, AZ filed a claim for service connection for PTSD. The VA RO denied her claim, noting that 

her service records did not document that a sexual assault 

had occurred. J.A. 239–40 (June 2004 Rating Decision).

AZ requested reconsideration, and submitted lay 

statements from three siblings, who reported that she was 

outgoing prior to service but became less communicative 

after meeting her alleged abuser. The siblings stated that 

in “about her fourth or fifth month of pregnancy [AZ] told 

us she had been sexually assaulted, verbally abused and 

beaten by Sgt. [J.H.],” and that AZ did not report the 

assaults to military authorities because she was afraid 

and did not think she would be believed. AZ J.A. 233; see 
AZ v. SHINSEKI 5

also AZ J.A. 234, 235. AZ’s request for reconsideration 

explained that “she did not report these incidents to the 

military legal authorities” because she “was a young girl, 

sexually assaulted, verbally abused and beaten by a 

superior [officer] and she was in fear of her life.” AZ J.A. 

232 (July 19, 2004 Request for Reconsideration). 

The RO again denied service connection. The RO 

found that although AZ’s siblings had reported that she 

told them about the assault during her pregnancy,

[y]our service medical records and military personnel file were review [sic] for verification of the 

assaults or at least some indication you were assaulted. The service medical records are negative 

for any comments made by you or the physicians 

regarding episodes of beatings or sexual trauma.

AZ J.A. 228 (Feb. 2006 Statement of the Case). 

AZ appealed to the Board, which remanded for further 

evidentiary development. In re AZ, No. 06-08 672 (Bd. 

Vet. App. Mar. 10, 2008). Service connection was again 

denied, and the Board affirmed that denial in January, 

2010. In re AZ, No. 06-08 672 (Bd. Vet. App. Jan. 22, 

2010). The Board determined that AZ’s service records 

“do not show any complaints, treatment or diagnosis for 

any psychiatric disorder or any reports of injuries from a 

personal assault during service,” id., slip op. at 6–7, and 

that

there is no documentation in the service records to 

indicate that the Veteran reported having been 

personally assaulted, or that she instigated proceedings against her alleged attacker. Moreover, 

the Veteran’s service treatment records contain no 

evidence that the Veteran sought treatment for 

the alleged sexual or physical assault itself.

Id. at 15. The Board stated that under the applicable 

regulations, “[s]ervice department records must support, 
6 AZ v. SHINSEKI

and not contradict, the veteran’s testimony regarding 

non-combat stressors.” Id. at 10 (emphasis added). 

According to the Board, 

[t]he crux of the issue . . . is whether there is competent evidence of record corroborating the Veteran’s allegation that she was sexually assaulted in 

service. . . . 

Here, the evidence of record does not corroborate the Veteran’s account . . . . [T]here is no documentation in the service records to indicate that 

the Veteran reported having been personally assaulted, or that she instigated proceedings against 

her alleged attacker. Moreover, the Veteran’s 

service treatment records contain no evidence that 

the Veteran sought treatment for the alleged sexual or physical assault itself. . . . 

. . . The Veteran has stated that she did not 

report sexual assault to military or civilian authorities. It is noted that a positive pregnancy 

test was reflected in the service treatment records; however, there is no notation that the pregnancy was a result of sexual abuse.

Id. at 15 (emphasis added). 

The Board acknowledged that the three lay statements submitted in support of AZ’s claim “reflect[ed] the 

Veteran’s reports of sexual and physical abuse.” Id. 

However, the Board found that “service treatment records 

and the report of examination prior to separation show no 

complaints or findings indicative of a psychiatric problem,” and that “[r]ecords from service do not document 

any in service assault.” Id. at 13. The lay statements 

were insufficient to overcome this deficit, because “none of 

these individuals . . . claimed to witness any personal 

assault take place.” Id. at 15. Therefore, the statements 

were “not as probative as the contemporaneous service . . . 
AZ v. SHINSEKI 7

records that do not reflect that the Veteran was assaulted 

while on active duty.” Id. at 16. Relying on the absence 

of service records of the assault, records of a disciplinary 

problem predating the alleged assault, a service medical 

record indicating AZ “plann[ed] on getting married,” 

documentation of possible post-service stressors such as 

unemployment, and other evidence, the Board concluded 

that “the evidence of record is insufficient to confirm that 

the [alleged assault] occurred.” Id. at 15–18.

AZ appealed to the Veterans Court. She argued, inter 

alia, that the Board improperly rejected her siblings’ 

statements solely because there was no documentation of 

the sexual assault in her service records: 

Given that the [VA] Secretary’s own procedures 

manual acknowledges that very few in-service assaults are documented, it is perplexing that the 

Board would use the lack of documentation of an 

assault as a basis for diminishing the probative 

weight of the statements. 

AZ J.A. 294 (Appellant’s Brief to the Veterans Court). 

The Veterans Court affirmed. AZ v. Shinseki, No. 10-

2393 (Vet. App. Nov. 28, 2011). It found that the Board 

did not err by weighing “these lay statements against the 

other evidence of record and f[i]nd[ing] them less probative,” because “the Board is permitted to weigh the absence of corroborating records and documents against the 

lay evidence of record.” Id., slip op. at 5. Likewise, the 

Veterans Court found that the Board gave due consideration to the evidence pertaining to AZ’s pregnancy, including the lack of medical records indicating that the 

pregnancy was a result of sexual assault, again stating 

that “[t]he Board is permitted to weigh the absence of 

corroborating records and documents against the lay 

evidence of record.” Id. at 7. AZ timely appealed the 

Veterans Court’s decision to this court. We have jurisdiction pursuant to 38 U.S.C. § 7292. 
8 AZ v. SHINSEKI

II. AY

Appellant AY served honorably on active duty from 

July 1980 to July 1983. She was diagnosed with PTSD in 

2002. She attributes her PTSD to a sexual assault committed by another soldier during her military training. 

Her service records contain no record of a report of sexual 

assault, treatment for sexual assault, or psychiatric 

problems. She stated that she did not report the alleged 

assault to military authorities. As discussed below, there 

is evidence the assault was contemporaneously reported 

to other individuals. 

In 2004, AY filed a claim for service connection for a 

psychiatric disorder, including PTSD. AY’s ex-husband 

submitted a statement in support of her claim, stating 

that she told him about the alleged assault while they 

were in service together. The RO denied entitlement to 

service connection.

In August 2005, AY requested that her claim be reopened and submitted three more lay statements from 

additional individuals who knew her during service. ES, 

a fellow soldier stationed with AY during training, reported that AY told her about the sexual assault the day after 

it occurred, and that AY subsequently became despondent 

and discussed suicide. AH, AY’s roommate at her subsequent duty assignment, reported that AY attempted 

suicide and received treatment for the incident at a base 

hospital. AY’s sister stated that prior to entering the 

military, AY was outgoing, but that afterward, she was 

“crazy.” AY J.A. 121.

The RO again denied service connection. The RO

acknowledged that AY had “provided statements from 

[four individuals] who support that they knew you while 

in service and that you told them about the rape.” AY 

J.A. 105 (Mar. 2006 Rating Decision). But the RO found 

there was “no evidence” to corroborate the alleged assault:
AZ v. SHINSEKI 9

Service Medical Records . . . failed to provide 

any evidence to support that you were raped or attempted suicide while in service. The records provided no information which would be indicative of 

a personal assault. . . . 

Military Personnel Records provided no evidence of any personnel problems or reported rape 

while in service. . . . 

Service connection has been denied since 

there is insufficient evidence to support that you 

were raped while in service. The statements you 

provided from your friends and family were insufficient to substantiate your claimed stressor, since 

none of them witnessed the incident, and only 

knew of the incident due to your statements alone. 

The service records failed to show that you had 

any difficulties while in service. Your records 

show that you had commendable military service. 

There is no evidence that can substantiate that 

you were raped while in service. Therefore service 

connection for PTSD is denied . . . . 

Id. (emphases added).

AY appealed to the Board. The Board also acknowledged the lay statements, but found that they were “directly contradicted by other evidence,” and that “in this 

case, other evidence strongly diminishes the[ir] probative 

value.” In re AY, No. 07-16 960, slip op. at 14 (Bd. Vet. 

App. Oct. 26, 2009). The Board observed that AY “did not 

report the [alleged assault] to police at the time that it 

occurred,” or “to anyone immediately”; that her service 

records contained no records of psychiatric treatment; and 

that there was “no record that the Veteran reported that 

she was sexually assaulted to medical personnel.” Id. at 

11–12. The Board found that these omissions contradicted the lay statements, and moreover, that AY’s “service 

records appear[ed] to be inconsistent with her reports and 
10 AZ v. SHINSEKI

the lay statements indicating that the Veteran experienced [severe] depression during service.” Id. at 14. 

Thus, “the lay statements submitted by the Veteran 

[we]re insufficient to corroborate her claimed stressor.” 

Id. at 15. Citing inconsistencies in AY’s accounts of the 

alleged assault, service records commending AY’s duty 

performance and “cheerful demeanor,” and other evidence, the Board determined that “the evidence is insufficient to confirm the occurrence of [the alleged sexual] 

assault.” Id. at 15–16. 

AY appealed, contending “that the Board improperly 

found the lay evidence not credible merely because it was 

unaccompanied by contemporaneous medical evidence.” 

See AY v. Shinseki, No. 10-2390, slip op. at 2 (Vet. App. 

Aug. 17, 2011). The Veterans Court disagreed, pointing 

out that the lay statements were not merely uncorroborated, but contradicted by the absence of records documenting treatment for the suicide attempt as described by 

AH. See id. The Court also observed that the records 

commending AY’s duty performance and demeanor “contradicted” the lay statements reporting that AY suffered 

from depression and other psychiatric problems after the 

sexual assault. Id. Thus, 

[a]lthough AY submitted statements regarding 

the [alleged assault] and lay witnesses submitted 

statements regarding her demeanor after the [alleged assault], the Board found them inconsistent 

with other evidence in the record and therefore 

not credible. 

Id. Concluding that “the Board rejected the lay evidence 

on permissible grounds: internal inconsistencies and 

contradictions with other evidence in the record,” the 

Veterans Court affirmed the Board’s finding that there 

was “no credible supporting evidence corroborating the inservice assault.” Id. AY timely appealed to this court. 

We have jurisdiction pursuant to 38 U.S.C. § 7292.
AZ v. SHINSEKI 11

* * * 

Following oral argument in both cases, we requested 

and received supplemental briefing from the parties on 

the question of “whether, in considering a disability claim 

based on in-service sexual assault, the [VA] may properly 

rely on the absence of contemporaneous service records 

reporting a sexual assault.” See AZ v. Shinseki, 2012-

7046 (Fed. Cir. Mar. 12, 2013); AY v. Shinseki, 2012-7048 

(Fed. Cir. Mar. 12, 2013).

DISCUSSION

These cases involve two simple but important questions. The first is whether, when adjudicating a PTSD 

claim based on an alleged in-service sexual assault, the 

Board may treat the absence of contemporaneous service 

records reporting the sexual assault as pertinent evidence 

that the sexual assault did not occur. The second question, related to the first, is whether the fact that no report 

of the alleged sexual assault was made to military authorities should be considered evidence that the alleged sexual 

assault did not occur.

This court’s review (apart from constitutional issues) 

is limited to questions of law, 38 U.S.C. § 7292(d), and our 

review of legal issues is without deference. Cook v. Principi, 353 F.3d 937, 938 (Fed. Cir. 2003). We have jurisdiction to review the Veterans Court’s legal determinations 

with respect to “the types of evidence which may support 

a claim for benefits.” Buchanan v. Nicholson, 451 F.3d 

1331, 1335 (Fed. Cir. 2006); see id. (holding that “lay 

evidence is one type of evidence that must be considered, 

if submitted, when a veteran’s claim seeks disability 

benefits”); see also Fagan v. Shinseki, 573 F.3d 1282, 1289 

(Fed. Cir. 2009) (holding that the Veterans Court did not 

err by disregarding an inconclusive, nonprobative medical 

opinion because it was “not pertinent evidence, one way or 

the other” to service connection). Accordingly, we have 
12 AZ v. SHINSEKI

jurisdiction to hear this appeal. See Fagan, 573 F.3d at 

1286; Buchanan, 451 F.3d at 1335.

I 

A 

By statute, the VA is required to “consider all information and lay and medical evidence of record” in determining service connection, 38 U.S.C. § 5107(b), but the 

statute also requires that medical and lay evidence be 

“pertinent,” see 38 U.S.C. § 1154(a)(1). In particular, the 

statute requires the VA Secretary to adopt regulations

requiring that in each case where a veteran is 

seeking service-connection for any disability due 

consideration shall be given to the places, types, 

and circumstances of such veteran’s service as 

shown by such veteran’s service record, the official 

history of each organization in which such veteran 

served, such veteran’s medical records, and all 

pertinent medical and lay evidence. 

Id. (emphasis added); see also 38 C.F.R. § 3.303(a) (similar).1 

Establishing service connection for a PTSD claim requires (1) a medical diagnosis of PTSD; (2) “a link, established by medical evidence, between [the] current 

symptoms and an in-service stressor”; and (3) “credible 

1 The dissent cites provisions of the statute and VA 

regulations that are supposedly contrary to the majority’s 

holding. Dissent at 7. But as discussed below, these 

provisions are not addressed to the absence of service 

records. Rather, they are addressed to existing service 

records of “the places, types, and circumstances of such 

veteran’s service.” See 38 U.S.C. § 1154(a)(1). We agree 

that such service records must be given “due consideration,” where they exist. 

 
AZ v. SHINSEKI 13

supporting evidence that the claimed in-service stressor 

occurred.” 38 C.F.R. § 3.304(f). “[C]orroborating evidence 

of an in-service stressor may in some situations be provided by lay evidence.” See Nat’l Org. of Veterans’ Advocates, 

Inc. v. Sec’y of Veterans Affairs, 330 F.3d 1345, 1352 (Fed. 

Cir. 2003) (upholding the validity of section 3.304(f)). 

When a PTSD claim is based on “in-service personal 

assault,” which includes sexual assault, the regulation 

provides that

evidence from sources other than the veteran’s 

service records may corroborate the veteran’s account of the stressor incident. Examples of such 

evidence include, but are not limited to: records 

from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, 

or physicians; pregnancy tests or tests for sexually 

transmitted diseases; and statements from family 

members, roommates, fellow service members, or 

clergy. 

§ 3.304(f)(5). Supporting evidence found in such sources,

if credible and pertinent, is positive evidence of the inservice stressor that the VA must consider. 

There is no dispute that a service record documenting 

an alleged sexual assault, if it existed, would be evidence 

supporting the conclusion that the alleged assault occurred. However, neither the statute, section 3.304(f)(5), 

nor any other VA regulation directly addresses the role 

that the absence of service records reporting the alleged 

assault should play in a disability determination. 

As we explained in Fagan, the VA must consider all 

evidence “pertinent” to service connection. See 573 F.3d 

at 1287–88. Pertinent evidence is evidence that is relevant, that is, it must tend to prove or disprove a material 

fact. See generally Fed. R. Evid. 401; 1 McCormick on 

Evidence § 185, at 994–1004 (7th ed. 2013). Evidence that 

is insufficiently probative, such as an inconclusive medi-
14 AZ v. SHINSEKI

cal report, “provides neither positive nor negative support

for service connection,” and “is not pertinent evidence, one 

way or the other, regarding service connection.” Fagan, 

573 F.3d at 1289 (emphasis added); see also 2 Jack B. 

Weinstein & Margaret A. Berger, Weinstein’s Federal 

Evidence § 401.07 (2d ed. 2012) (“Weinstein’s Federal 

Evidence”) (“[Evidence that] simply does not tend to prove 

a fact that is of consequence to the action[] . . . is not 

relevant.”) (emphases omitted). 

The absence of certain evidence may be pertinent if it 

tends to disprove (or prove) a material fact. See Forshey 

v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 2002) (en banc)

(“[T]he definition of evidence encompasses ‘negative 

evidence,’ which tends to disprove the existence of an 

alleged fact . . . .”). In Buchanan, we addressed a situation in which confirmatory service records were absent. 

There, a veteran seeking service connection for schizophrenia challenged the Board’s refusal to credit several 

lay statements reporting that he had suffered from symptoms of schizophrenia “while in service or soon thereafter.” 451 F.3d at 1333. The Board found that these lay 

statements “lack[ed] credibility absent confirmatory 

clinical records to substantiate such recollections” of the 

veteran’s in-service symptoms. Id. (quotation marks 

omitted). 

We vacated and remanded. We held that it would be 

“legally untenable” for the Board to conclude “that absent 

confirmatory [record] evidence, lay evidence lacks credibility,” and explained that “the lack of such records does 

not, in and of itself, render lay evidence not credible.” Id.

at 1336. We recognized, however, that as a general 

matter, “the lack of contemporaneous medical records 

may be a fact that the Board can consider and weigh 

against a veteran’s lay evidence.” Id. 

The appellants do not dispute that the absence of contemporaneous service records of an event or condition will 
AZ v. SHINSEKI 15

often be pertinent. However, they argue that the absence 

of contemporaneous service records of unreported inservice sexual assaults is not pertinent, because it is not 

reasonable to expect that such assaults would have been 

reported to superior officers, or that records of unreported

assaults would exist.2

B 

The VA does not dispute that, in the great majority of 

cases, such incidents are not reported to military authorities, and therefore such records do not exist. The regulatory history of section 3.304(f)(5) reveals that it was 

enacted in part to address the fact that “[m]any incidents 

of in-service personal assault are not officially reported.” 

See Post-Traumatic Stress Disorder Claims Based on 

Personal Assault, 65 Fed. Reg. 61,132, 61,132 (Oct. 16, 

2000) (proposed rule). This is especially true of in-service 

sexual assaults. The Department of Defense (“DoD”), 

which is required by statute to report to Congress annually on “[t]he number of sexual assaults [involving] members of the Armed Force[s] that were reported to military 

officials,” see Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, Pub. L. No. 108-375, 

§ 577(f), 118 Stat. 1811, 1927 (2004), has estimated that a 

significant majority of in-service sexual assaults are 

unreported. In 2012, the “[DoD] estimate[d] that about 11 

percent of the sexual assaults [involving Service members] that occur each year are reported to a DoD authority.” 1 DoD Sexual Assault Prevention & Response Office

(“SAPRO”), Department of Defense Annual Report on 

2 To the extent the appellants argue here that the 

Board or Veterans Court, contrary to Buchanan, erred by 

requiring a record of the alleged assault to corroborate the 

lay statements, we do not think they imposed any such 

requirement. 

 
16 AZ v. SHINSEKI

Sexual Assault in the Military: Fiscal Year 2012, at 18 

(2013) (“2012 SAPRO Report”). DoD estimated that

[i]n 2010, reports by victims accounted for about 

14 percent of the sexual assaults estimated to 

have occurred. . . . The majority of sexual assaults 

against Service members each year remain unreported.

DoD SAPRO, Department of Defense Annual Report on 

Sexual Assault in the Military: Fiscal Year 2010, at 22

(2011) (“2010 SAPRO Report”).3 And “[i]n 2006, reports to 

DoD authorities accounted for about 7 percent of the [inservice] sexual assaults estimated to have occurred that 

year.” 2010 SAPRO Report, supra, at 22; see also id. at 98 

(stating that the “[e]stimated [n]umber of [s]exual 

[a]ssaults [g]oing [u]nreported to DoD” in 2006 was 93%). 

The DoD estimates that between 2006 and 2012, fewer 

3 For incidents of sexual assault occurring after the 

2007 revisions to the Uniform Code of Military Justice 

(“UCMJ”) and prior to the 2012 UCMJ revisions, “sexual 

assault” 

include[s] rape, aggravated sexual assault, nonconsensual sodomy, aggravated sexual contact, 

abusive sexual contact, wrongful sexual contact, 

and attempts to commit these offenses. 

2010 SAPRO Report, supra, at 64; see also UCMJ art. 

120(m) (2007) (defining “wrongful sexual contact” as 

“without legal justification or lawful authorization, engag[ing] in sexual contact with another person without 

that other person’s permission”), codified at 10 U.S.C. 

§ 920(m) (2007); UCMJ art. 120(t)(2) (2007) (defining 

“sexual contact” as “intentional touching” of certain body 

parts “with an intent to abuse, humiliate, or degrade any 

person or to arouse or gratify the sexual desire of any 

person”), codified at 10 U.S.C. § 920(t)(2) (2007). 

 
AZ v. SHINSEKI 17

than 15 percent of military sexual assault victims reported the assault to a military authority. 2012 SAPRO 

Report, supra, at 53.4 

VA has long recognized that the underreporting of inservice sexual assaults is a problem for claimants. As 

early as 1996, the VA claims manual

state[d], with respect to claims based upon a personal assault: “The service record may be devoid 

of evidence because many victims of personal assault, especially sexual assault and domestic violence, do not file official reports either with 

military or civilian authorities.” 

YR v. West, 11 Vet. App. 393, 398 (1998) (quoting VA 

Adjudication Procedure Manual M21-1 (Feb. 20, 1996)). 

Servicemen and servicewomen who experience inservice sexual assaults face “unique” disincentives to 

report. See DoD Care for Victims of Sexual Assault Task 

Force, Report on Care for Victims of Sexual Assault 28 

(2004) (“2004 Task Force Report”) (“Finding 12: There are 

barriers to reporting incidents of sexual assault. Some 

4 Recognizing the disincentives and reluctance to 

report, in 2005 the DoD adopted a policy allowing servicemembers to make a “restricted” report of a sexual 

assault, which “allows victims to confidentially access 

medical care and advocacy services without initiating an 

official investigation or command notification.” 2012 

SAPRO Report, supra, at 17; see also id. app. B at 99–101 

(describing the restricted reporting option). These confidential reports apparently are not included in the service 

member’s records. The DoD figures cited in the text for 

reports of sexual assault in the years 2006–2012 include 

both restricted and unrestricted reports. Thus, it seems 

probable that the percentage of reports that would appear 

in a service member’s records is even lower. 

 
18 AZ v. SHINSEKI

are consistent with those in the civilian community while 

others are unique in a military setting.”). DoD findings 

from 2010 indicate that more than half of the female 

service members who experienced, but did not report, an 

incident of unwanted sexual contact5 during the previous 

year “cite[d] fear of retaliation or reprisals . . . as a reason 

for not reporting.” See 2010 SAPRO Report, supra, at 95.6 

5 DoD bases its estimates in part on the Workplace 

and Gender Relations Survey of Active Duty Members 

(“WGRA”), conducted every two to four years. See generally Defense Manpower Data Center, DMDC Report No. 

2010-025, 2010 WGRA: Overview Report on Sexual Assault (2011). WGRA uses the term “unwanted sexual 

contact” for acts corresponding to sexual assault, see id. at 

iv; see also 2010 SAPRO Report, supra, at 92 n.132, and 

distinguishes these acts from “sexual harassment,” which 

comprises “crude/offensive behavior, unwanted sexual 

attention, and sexual coercion,” see Defense Manpower 

Data Center, DMDC Report No. 2010-023, 2010 Service 

Academy Gender Relations Survey 4 (2010). 

6 According to VA clinical materials, 

sexual victimization that occurs in [the military] 

setting often means that victims are relying on 

their perpetrators (or associates of the perpetrator) to provide for basic needs including medical 

and psychological care. . . . 

Because organizational cohesion is so highly valued within the military environment, divulging 

any negative information about a fellow soldier is 

considered taboo. Accordingly, many victims are 

reluctant to report sexual trauma . . . . 

Amy Street & Jane Stafford, Military Sexual Trauma: 

Issues in Caring for Veterans in Eve B. Carlson et al., Iraq 

War Clinician Guide, 66, 66–67 (2d ed. 2004), available at

 
AZ v. SHINSEKI 19

Of those who did make a report, “most female victims 

surveyed indicate[d] experiencing some kind of retaliation 

(either professional or social) or administrative action 

against them associated with their reporting the sexual 

assault.” Id. at 41; see also DoD, Calendar Year 2004 

Report: Sexual Offenses Involving Members of the Armed 

Forces 5 (2005) (“2004 DoD Report”) (“A victim’s fear of 

punishment [for misconduct occurring at the same time as 

the assault] is a significant barrier to reporting sexual 

assault.”). Many victims also fear “the stigma associated 

with sexual assault reporting,” and may “mistakenly 

assume that being the victim of a sexual assault will 

make them appear weak or incapable of performing their 

mission.” 2010 SAPRO Report, supra, at 20; see also Gov’t 

Accountability Office, GAO-08-1013T, Military Personnel: 

Preliminary Observations on DoD’s and the Coast Guard’s 

Sexual Assault Prevention and Response Programs 14

(2008) (finding that “[c]ommonly cited reasons [for not 

reporting] at the installations we visited included: (1) the 

belief that nothing would be done; (2) fear of ostracism, 

harassment, or ridicule by peers; and (3) the belief that 

their peers would gossip about the incident”). 

In sum, due to numerous disincentives to reporting,

“[o]ver the past 6 years, the [DoD] estimates that fewer 

than 15 percent of military sexual assault victims report[ed] the matter to a military authority.” 2012 SAPRO 

Report, supra, at 53.

There is also no reason to believe that the most severe 

assaults are reported with greater frequency. First, the 

government has not suggested that this is the case. 

Second, there is no reason to believe that the factors 

which usually deter reporting, such as fear of stigma or 

fear of reprisal by the perpetrator, are lessened in those 

http://www.ptsd.va.gov/professional/manuals/manualpdf/iwcg/iraq_clinician_guide_v2.pdf.

 
20 AZ v. SHINSEKI

cases where a rape is completed. Third, the DoD has 

consistently stated that the underreporting of rape is a 

significant problem. See generally Office of the Inspector 

General of the DoD, Interim Report on the USAFA Sexual 

Assault Survey (2003) (discussing incidence and reporting 

of in-service rape); see also, e.g., DoD, 2006 DoD Annual 

Report on Military Services Sexual Assault for Calendar 

Year 2006, at 2 (2007). Fourth, the DoD figures from the 

pre-2007 period, when “sexual assault” was defined more 

narrowly (as rape, nonconsensual sodomy, indecent 

assault, and attempts to commit those offenses), indicate 

that the vast majority of offenses were not reported. See

2010 SAPRO Report, supra, at 22, 98 (comparing estimates for 2006 (93% unreported to the DoD) and 2010

(86% unreported to the DoD)).7 Military academy surveys 

during that period also indicate that significantly more 

rapes occurred than were reported to authorities. For 

example, a 2006 survey of U.S. Air Force Academy 

(“USAFA”) cadets found that 

[o]f the 60 Women [reporting at least one event of 

unwanted sexual contact], 26 reported completed 

sex or other sex acts, 29 reported attempted sex or 

other sex acts, and 49 reported sexual touching. 

7 “For incidents that occurred prior to the changes 

made to the UCMJ on October 1, 2007, sexual assault 

included rape, nonconsensual sodomy, indecent assault, 

and attempts to commit these acts.” Id. at 64; see also

2004 DoD Report, supra, at 3 (reflecting the same definition). “Indecent assault” is an “attempt[] or offer[] with 

unlawful force or violence to do bodily harm to another 

person,” committed upon a person other than the defendant’s spouse, “with the intent to gratify the lust or sexual 

desires of the accused.” See UCMJ art. 128 (2005) (defining assault), codified at 10 U.S.C. § 928 (2005); Manual 

for Courts-Martial of the United States, ¶ 63, at IV-98 to 

-99 (2005 ed.)

 
AZ v. SHINSEKI 21

. . . Only 3 (5%) Women reported [the incident affecting them most] to an authority or organization. 

USAFA, Report on Sexual Harassment and Violence: 

USAFA Academy Program Year 2006 16 (2006). A 2003

survey similarly found that of 26 female cadets who 

reported experiencing a single incident of sexual assault

which involved rape or attempted rape, six had reported 

the assault to military authorities, Office of the Inspector 

General of the DoD, supra, at 17–18, and further noted

that three of these six cadets reported suffering reprisal 

by their peers or by military authorities. Id.

Appellants argue that given the pervasive nonreporting of in-service sexual assaults, the Board and Veterans 

Court acted contrary to the statute and section 3.304(f)(5) 

by “accord[ing] evidentiary status to the absence of [service record] evidence” reporting the alleged assaults. See

AZ Br. 20; AY Br. 21.8 

C 

At common law, the majority of courts held that 

where circumstances supported the conclusion that “an 

entry would naturally have been made if a transaction 

had occurred,” then evidence showing the absence of an 

entry “should ordinarily be equivalent to an assertion that 

no such transaction occurred, and therefore should be 

admissible in evidence for that purpose.” 5 John Henry 

Wigmore, Evidence in Trials at Common Law § 1531, at 

463 (James H. Chadbourn rev., 1974) (“5 Wigmore on 

8 Appellants do not dispute that where a veteran 

claims to have reported a sexual assault to military 

authorities, but no report is found, the absence of the 

report may be pertinent to the evaluation of his or her 

claim.

 
22 AZ v. SHINSEKI

Evidence”) (emphasis added); see also id. n.2 (collecting 

cases).9 

This rule has long been followed by the Supreme 

Court. For example, in Chesapeake & Delaware Canal 

Co. v. United States, the Supreme Court explained that 

evidence of the absence of a payment entry from Treasury

Department records was admissible as evidence of nonpayment, because 

[s]uch books so kept presumptively contained a 

record of all payments made and the absence of 

any entry of payment, where it naturally would 

have been found if it had been made, was evidence 

of nonpayment proper for the consideration of the 

jury. 

250 U.S. 123, 129 (1919) (emphases added). Similarly, 

evidence of “[t]he absence of all traces of [land] grants,

where evidence would usually be found, if it had existed,” 

is admissible to show a purported grant was never made. 

Hornsby v. United States, 77 U.S. 224, 241 (1870) (emphasis added). The rule is logical because where a comprehensive record of events is regularly kept, as in an 

archive of land grants, “[t]he absence of any record evidence is remarkable, if the title is genuine.” United States 

v. Teschmaker, 63 U.S. 392, 405 (1860). 

Following this general approach, lower federal courts 

applying common law evidentiary principles have gener9 A minority of courts appear to have held that evidence of the absence of an entry from regularly kept 

records was inadmissible. See Shreve v. United States, 77 

F.2d 2, 7 (9th Cir. 1935) (collecting “cases which hold that 

the nonexistence of a debt or obligation cannot be established by proof that the books contain no such entry”); see 

also 5 Wigmore on Evidence, supra, § 1531, at 463 (criticizing the minority rule). 

 
AZ v. SHINSEKI 23

ally held that “[t]he absence of a record of an event which 

would ordinarily be recorded gives rise to a legitimate 

negative inference that the event did not occur.” See

United States v. Robinson, 544 F.2d 110, 114 (2d Cir. 

1976) (emphasis added); see also United States v. De 

Georgia, 420 F.2d 889, 893 (9th Cir. 1969) (“[I]f a business 

record designed to note every transaction of a particular 

kind contains no notation of such a transaction between 

specified dates, no such transaction occurred between 

those dates.”) (emphasis added); Keith v. United States, 

250 F.2d 355, 356 (5th Cir. 1957) (holding that an agent’s 

testimony that “he checked with the police department, 

the sheriff’s office, public utilities, chamber of commerce, 

telephone and business directories and talked to local 

residents” but found no record of a person was admissible 

as proof that the person was fictitious); Nichols v. United 

States, 48 F.2d 46, 49 (5th Cir. 1931) (similar).10 

10 See also, e.g., Commonwealth ex rel. Funk v. 

Clark, 225 S.W.2d 118, 119 (Ky. 1949) (“The absence of an 

entry in a public [school] record that would appear in it in 

the usual course may be generally accepted as evidence 

that an event did not take place or that something was 

not done.”) (emphasis added); Duren v. Ark. State Bd. of 

Optometry, 201 S.W.2d 578, 579 (Ark. 1947) (admitting 

testimony that the appellant’s name did not appear on “a 

roster of all men licensed to practice optometry in Arkansas” as proof that he was unlicensed); Eisminger v. Mitchell, 73 P.2d 862, 865 (Okla. 1937) (affirming the trial 

court’s admission of court records as evidence that no 

previous judgment was entered where, “because of the 

statute and general rule, [the records] should [have] 

contain[ed] such an entry if judgment had been entered”); 

Sharp v. Pawhuska Ice Co., 217 P. 214, 217–18 (Okla. 

1923) (collecting cases refusing to admit the absence of 

records, and holding them inapplicable where business 

records were regularly kept in triplicate); Griffin v. Wise, 

 
24 AZ v. SHINSEKI

Correspondingly, courts have refused to admit evidence of the absence of a record to show that an event did 

not occur, where it was not reasonable to expect the event 

to have been recorded. For example, in Shreve v. United 

States, the Ninth Circuit held that, even assuming evidence of the absence of an entry from a company’s account 

books would generally be admissible to show a transaction had not occurred, the account books in question “did 

not show that the [missing] transaction was fictitious,” as 

it had not been established that they “contained an accurate record of all the business of the corporation, and 

particularly that under the method of bookkeeping adopted by the corporation the books would disclose the existence of all outstanding indebtedness.” 77 F.2d 2, 6–7 (9th 

Cir. 1935) (citation omitted) (emphases added). Similarly, 

in Bowman v. Kaufman, the Second Circuit held that 

police records were inadmissible to prove that no witnesses had reported a brake failure, because the records did 

not indicate that the police officer would have asked about 

or recorded any statements regarding the cause of the 

accident; thus, although the records “g[ave] no suggestion 

that [the police officer] was ever told of a brake failure, 

neither [wa]s there anything in [the records] inconsistent 

with this having happened.” 387 F.2d 582, 587–88 (2d 

Cir. 1967); see also id. at 587 n.5 (citing 5 Wigmore on 

Evidence, supra, § 1531). 

The common-law rule has been codified in Rule 803 of 

the Federal Rules of Evidence, which represents a “syn41 S.E. 1003, 1004 (Ga. 1902) (“A [tax] book which would 

contain an entry if such an entry existed is admissible . . . 

to show that such entry is not in existence.”) (emphasis 

added); Knapp v. Day, 34 P. 1008, 1009 (Colo. App. 1893) 

(affirming the trial court’s admission of testimony of “the 

postmaster, having charge of the records of the [post] 

office, . . . that the records did not show [registered] 

letters to have been received”).

 
AZ v. SHINSEKI 25

thesis” of common law principles. See Fed. R. Evid. 803 

advisory committee’s note (1972). While these rules are 

not mandatory in VA disability hearings, they are further 

evidence of the common law approach, and we agree with 

the Veterans Court that they offer useful guidance. See 

Gambill v. Shinseki, 576 F.3d 1307, 1330 (Fed. Cir. 2009)

(Moore, J., concurring) (recognizing that the Veterans 

Court has looked to the Federal Rules as “‘guiding factors 

to be used by the Board in evaluating the probative value 

of medical opinion evidence’” (quoting Nieves-Rodriguez v. 

Peake, 22 Vet. App. 295, 302 (2008))); see also Stevenson v. 

Linens of the Week, 688 F.2d 93, 98–99 (D.C. Cir. 1982) 

(approving the Benefits Review Board’s reliance by analogy to Rule 803 “on the principle that the absence of an 

entry in a business record is probative of the nonoccurrence of the event in question”). 

Rule 803(7) allows admission of “[e]vidence that a 

matter is not included in a record” of a regularly conducted activity in order “to prove that the matter did not occur 

or exist,” so long as “a record was regularly kept for a 

matter of that kind” and there are no “circumstances 

indicat[ing] a lack of trustworthiness.” Fed. R. Evid. 

803(7).11 Rule 803(10) similarly authorizes admission of 

11 Some courts characterized testimony about the 

absence of a record or statement as “hearsay” or “negative 

hearsay.” See, e.g., Menard v. Cashman, 55 A.2d 156, 

160–61 (N.H. 1947) (holding that testimony that no 

patrons ever complained about allegedly defective stairs 

was correctly excluded because “[i]f the excluded testimony was not hearsay, and therefore inadmissible, it was at 

most only evidence of inconclusive silence” (citations 

omitted)); see also Edmund M. Morgan, Hearsay Dangers 

and the Application of the Hearsay Concept, 62 Harv. L. 

Rev. 177, 213 (1948) (“The decisions are in conflict as to 

whether the silence is to be treated as hearsay.”). 

 
26 AZ v. SHINSEKI

evidence of the absence of a public record to prove that “a 

matter did not occur or exist, if a public office regularly 

kept a record or statement for a matter of that kind.” 

Fed. R. Evid. 803(10)(B). 

Notably for our purposes, both rules require for admissibility that “a record was regularly kept” for the type 

of event in question. See Fed. R. Evid. 803(7); see also

Fed. R. Evid. 803(10)(B). To establish that the record 

tends to prove (or disprove) a matter, it is “crucial” to 

“[d]emonstrat[e] that the records were kept in such a way 

that the matter would have been recorded had it occurred.” 5 Weinstein’s Federal Evidence, supra, at

§ 803.09 (emphasis added) (discussing Rule 803(7)); see 

also United States v. Rich, 580 F.2d 929, 938 (9th Cir. 

1979) (noting that Rules 803(7) and 803(10) “are grounded 

on the high probability of [the records’] accuracy”).12 

While the absence of a record is “probably not hearsay as 

defined in” the general hearsay rule, its inclusion under 

the rubric of hearsay exceptions establishes that regardless of its hearsay status, the “[f]ailure of a record to 

mention a matter which would ordinarily be mentioned is 

satisfactory evidence of its nonexistence,” thereby 

“set[ting] the question at rest in favor of admissibility” of 

such evidence. See Fed. R. Evid. 803(7) & advisory committee’s note (1972) (emphasis added); see also United 

States v. Rich, 580 F.2d 929, 937–38 (9th Cir. 1979) 

(stating that Rules 803(7) and 803(10) “resolved the issue” 

of admissibility by “treat[ing] evidence of the absence of 

entries . . . as an exception to the hearsay rule”). 

12 Similar requirements have been adopted in state 

statutes. See, e.g., Cal. Evid. Code § 1272 (2013) (admitting evidence of the absence of a business record to prove 

the nonoccurrence of an event if “all such acts, conditions, 

or events” were recorded, and “the absence of a record . . . 

is a trustworthy indication that the act or event did not 

occur”).

 
AZ v. SHINSEKI 27

Evidence that an entry is missing from a deficient record 

is inadmissible under the Rules. See, e.g., Robinson, 544 

F.2d at 114–15; see also United States v. Rith, 164 F.3d 

1323, 1336 (10th Cir. 1999) (collecting cases).

There is no reason why the well-established commonlaw principle concerning the inadmissibility of unreliable 

record evidence should not be followed here. Indeed, the 

Veterans Court has held in similar circumstances that

where a condition would not normally have been recorded, 

“the Board may not consider the absence of [administrative record] evidence as substantive negative evidence” of 

that condition. See Buczynski v. Shinseki, 24 Vet. App. 

221, 224 (2011). In Buczynski, the Veterans Court ruled 

that the Board erred in basing its determination that a 

veteran’s skin condition was “not exceptionally repugnant” on the absence of a medical record documenting 

such a condition: 

[T]here [was not] any medical reason why a doctor 

would be expected to comment on the repugnance 

of [the veteran’s] condition. Therefore, this is not 

a situation where the silence in regard to a condition can be taken as proof that a doctor did not observe the symptom. 

Id. at 224 (emphasis added); see also id. (citing Federal 

Rule of Evidence 803(7)). Similarly, in Horn v. Shinseki, 

the Veterans Court held that the Board erred in relying 

on the lack of service records documenting a medical 

condition because “there is no evidentiary foundation, or 

even a logical reason to suppose” that the condition would 

have been recorded during the veteran’s treatment. 25 

Vet. App. 231, 239 n.7 (2012). The Veterans Court recently applied the rule stated in Buczynski to a PTSD claim 

based on alleged in-service sexual assault. See NesbitNetcliff v. Shinseki, No. 11–0950, 2012 WL 3205518 (Vet. 

App. Aug. 8, 2012) (nonprecedential). The Veterans Court 

held that where service medical records “are silent as to 
28 AZ v. SHINSEKI

the appellant having being [sic] raped,” the records “do 

not contradict [the veteran’s] statement” that she was 

raped, because “[i]t is not surprising that a rape victim 

would be silent regarding the fact that she had been 

raped.” Id. at *4 (emphasis in the original) (reversing and 

remanding).

These cases are consistent with our holding in Fagan, 

which addressed the Board’s treatment of evidence lacking probative value (an inconclusive medical report recounting a doctor’s inability to reach a conclusion one way 

or the other). Fagan, 573 F.3d at 1289–90. We held that 

such evidence 

provides neither positive nor negative support for 

service connection. Therefore, it is not pertinent 

evidence, one way or the other, regarding service 

connection.

Id. at 1289 (emphasis added) (citation omitted). 

Like the inconclusive medical report in Fagan, the absence of a report of an unreported sexual assault is too 

ambiguous to have probative value. Because the alleged 

assaults were not reported to military authorities, no 

reasonable person could expect records documenting the 

assaults to exist, or infer that the absence of such records 

tends to prove the assaults did not occur. Thus, the 

absence of records “provides neither positive nor negative 

support for service connection,” see id. at 1289, and is “not 

pertinent evidence, one way or the other,” to that determination, see id. 

In sum, basic evidentiary principles preclude treating 

the absence of a record of an unreported sexual assault as 

evidence of the nonoccurrence of the assault. Therefore, 

we agree with the appellants that where an alleged sexual 

assault, like most in-service sexual assaults, is not reported, the absence of service records documenting the alleged 
AZ v. SHINSEKI 29

assault is not pertinent evidence that the assault did not 

occur. See Fagan, 573 F.3d at 1289–90.13

II

The second question is whether the veterans’ admitted failure to report the sexual assaults to superiors in the 

chain of command is itself pertinent evidence that the 

assaults did not occur. In both AZ and AY, the Board 

noted, and may have given weight to, the failure of the 

veterans to report the rapes to military authorities. 

It is true that in the context of criminal rape trials, 

courts historically presumed that “it [wa]s so natural as to 

be almost inevitable” that a rape victim would “make 

immediate complaint [about the rape] to her mother or 

other confidential friend.” See Baccio v. People, 41 N.Y. 

265, 268 (1869); see also 4 John Henry Wigmore, Evidence 

in Trials at Common Law § 1135, at 298–301 & nn.1–2 

(James H. Chadbourn rev., 1972) (“4 Wigmore on Evidence”) (collecting cases); State v. Hill, 578 A.2d 370, 374–

77 (N.J. 1990) (discussing the history of this presumption). Therefore, it was thought that a victim’s failure to 

promptly report the rape to anyone was a “suspicious 

inconsistency”:

13 We do not suggest that service records cannot 

otherwise be relied on by the VA, for example, to show AZ

had a disciplinary problem prior to the alleged assault, or 

to establish that AY was never treated for attempted 

suicide at a military hospital. 

The dissent suggests “the absence of a report in [AZ 

and AY’s] records cannot possibly have any bearing on the 

outcome of the cases before us.” Dissent at 6. But if an 

absence of a documentary record is irrelevant, the VA 

should not have relied on that absence in reaching its 

decision. 

 

 
30 AZ v. SHINSEKI

It has already been seen that the fact of a failure 

to speak when it would have been natural to do so 

is in effect an inconsistent statement or selfcontradiction . . . . 

[Where] the accused denies [that the rape occurred], its very commission thus coming into issue, the circumstance that at the time of the 

alleged rape the woman said nothing about it to 

anybody constitutes in effect a self-contradiction 

of the above sort. It was entirely natural, after 

becoming the victim of an assault against her will, 

that she should have spoken out. That she did 

not, that she went about as if nothing had happened, was in effect an assertion that nothing violent had been done. 

Thus the failure of the woman, at the time of 

an alleged rape, to make any complaint could be 

offered in evidence (as all concede) as a virtual 

self-contradiction discrediting her present testimony.

4 Wigmore on Evidence, supra, § 1135 at 298 (emphases 

in the original) (citation omitted); see also, e.g., Baccio, 41 

N.Y. at 268. 

There are several reasons why this common law theory of pertinence is inapposite here. First, the failure to 

report the rape was considered relevant only where the 

victim failed “to make any complaint” to anyone, not 

where the victim failed to make an official report to a 

supervisor, an employer, or the police. See 4 Wigmore on 

Evidence, supra, § 1135 at 298 (emphasis in the original). 

Indeed, the cases generally asked whether the victim had 

reported the rape to her family or friends. See, e.g., State 

v. Balles, 221 A.2d 1, 5 (N.J. 1966) (admitting “proof that 

the violated victim complained within a reasonable time 

to someone she would ordinarily turn to for sympathy, 

protection and advice”—specifically, her mother); Thomas 
AZ v. SHINSEKI 31

v. State, 87 S.E. 8, 9 (Ga. 1915) (admitting testimony that 

the victim “made complaint to those to whom complaint of 

such an occurrence would naturally be made”—

specifically, her parents); Baccio, 41 N.Y. at 268 (stating 

that a victim generally “will make immediate complaint 

[of the rape] to her mother or other confidential friend”); 

State v. De Wolf, 8 Conn. 93, 100 (1830) (“If a female 

testifies, that [she has been raped], an enquiry is, at once, 

suggested, why it was not communicated to her female 

friends.”). In other words, under the common law, a rape 

victim was expected to complain to the very categories of 

individuals specified in section 3.304(f)(5) as potential 

sources of supporting evidence—the same kinds of individuals who submitted supporting statements here. We 

are unaware of cases holding that the failure to report the 

alleged rape to the police or a workplace supervisor tends 

to show that the rape did not occur. 

Second, modern courts are skeptical that the lack of a 

prompt report has probative value because a rape victim 

will “natural[ly]” report the assault. Rather, they recognize that “[t]he overwhelming body of current empirical 

studies, data, and other information establishes that it is 

not inherently ‘natural’ for the victim to confide in someone or to disclose, immediately following commission of 

the offense, that he or she was sexually assaulted.” See 

People v. Brown, 883 P.2d 949, 956 (Cal. 1994); see also, 

e.g., Commonwealth v. Licata, 591 N.E.2d 672, 674 (Mass. 

1992) (“[L]ack of a fresh complaint in no way necessarily 

. . . implies lack of rape.”). It is now known that sexual 

assault is generally underreported. See, e.g., S. Rep. No. 

102–197, at 44 (1991) (“Consider the typical rape victim. 

. . . Few even report the crime.”); id. at 38 (stating that 

rape is among “the most underreported crimes in America”). Courts recognize that many victims are afraid to 

report the crime because they fear stigma, humiliation, or 
32 AZ v. SHINSEKI

the ordeal of testifying about the attack.14 To the extent 

that courts permit criminal defendants to cross-examine 

prosecution witnesses, including rape victims, about 

omissions that are arguably inconsistent with the prosecution’s case, that practice rests on a unique consideration 

inapplicable to a civil benefits proceeding: the overriding 

need to safeguard a defendant’s right to a fair trial and

Sixth Amendment right of confrontation. See Olden v. 

Kentucky, 488 U.S. 227, 230–32 (1988) (holding that the 

defendant in a rape trial had a constitutionally protected 

right to cross-examine the complainant on an issue the 

trial court excluded as too prejudicial). In the context of a 

non-adversarial civil benefits proceeding, such as a VA 

benefits proceeding, there is no criminal defendant, and 

these constitutional concerns are inapposite. 

Third, as a general matter, courts have held in both 

criminal and civil contexts that, similar to the rule on 

omissions from unreliable records, where there is reason 

14 For example, in Commonwealth v. Morgan, the 

Supreme Court of Pennsylvania pointed out that not all 

rape victims report: 

Women who are violated as [the victim] claims 

she was may be divided into three classes: (1) 

those who furiously turn on their attacker with 

any weapon available or even with their bare 

hands; (2) those who because of a natural dread of 

having the indignity publicized, remain silent; 

and (3) those who, after counseling for a day or 

two with husband and friends, invoke the law. . . .

The members of all three classes are entitled to 

respect.

58 A.2d 330, 334 (Pa. 1948); see also id. at 333 (stating 

that “[m]ost women are reluctant to make a complaint in 

rape cases” because they fear “notoriety” and the ordeal of 

testifying). 

 
AZ v. SHINSEKI 33

to suspect that no report or other statement would have 

been made, testimony about the failure to make a report 

or statement is inadmissible. As the Supreme Court has 

recognized, “[i]n most circumstances silence is so ambiguous that it is of little probative force.” United States v. 

Hale, 422 U.S. 171, 176 (1975). When evaluating whether 

the failure to make a statement may be probative of a 

material fact, “the underlying test is, would it have been 

natural for the person to make the assertion in question?” 

3A John Henry Wigmore, Evidence in Trials at Common 

Law § 1042 at 1058 (James H. Chadbourn rev., 1970) 

(emphasis added). Thus, 

silence is commonly thought to lack probative value on the question of whether a person has expressed tacit agreement or disagreement with 

contemporaneous statements of others. . . . Failure to contest an assertion . . . is considered evidence of acquiescence only if it would have been 

natural under the circumstances to object to the 

assertion in question. 

Hale, 422 U.S. at 176 (citation omitted); see also Jenkins 

v. Anderson, 447 U.S. 231, 239 (1980) (“Common law 

traditionally has allowed witnesses to be impeached by 

their previous failure to state a fact in circumstances in 

which that fact naturally would have been asserted.”)

(emphasis added). 

Thus, where an individual would not be expected to

make a statement, courts generally do not admit testimony that no statement was made.15 Similarly, courts 

15 For example, the Supreme Court of Georgia held 

in Sherling v. Continental Trust Co. that the trial court 

erred by allowing testimony that a decedent 

never said anything to [the witness] about a contract [he allegedly made with the plaintiff and a 

third party]. This evidence should have been ex-

 
34 AZ v. SHINSEKI

generally refuse to allow a witness to testify that he was 

never told a fact, where one would not expect that witness 

to have been informed.16 It is generally recognized that 

cluded . . . on the ground that it was irrelevant 

and immaterial, and no circumstances were shown 

requiring [the decedent] to make any statement 

about the contract referred to or to admit or deny 

the making of the same. 

165 S.E. 560, 561 (Ga. 1932) (emphasis added) (headnote). 

And in Lake Drainage Commissioners v. Spencer, where 

the fact in question was whether or not a summons had 

been served on the defendants’ mother, the Supreme 

Court of North Carolina held that the trial court erred by 

admitting the defendants’ testimony that they had never 

heard their mother say she was served with summons as 

tending to prove that no service was made, because the 

mother’s failure to mention the summons “prove[d] nothing, and if it proved anything, would tend to show that 

she had been served.” 93 S.E. 435, 435 (N.C. 1917). 

16 For example, in a suit by a stepdaughter alleging 

abuse by her stepmother, the Court of Appeals of Indiana 

held that testimony by the defendant’s son to the effect 

that his stepsister never mentioned the alleged abuse in 

his presence was inadmissible to show that the abuse did 

not occur, because “[t]here was nothing obligatory upon 

[the stepsister] to discuss the fact of the trouble between 

herself and her stepmother with the witness, or with 

other persons in his presence.” Treschman v. Treschman, 

61 N.E. 961, 964 (Ind. Ct. App. 1901). Courts have been 

more accepting of the proposition that because close 

family members would be told of a loved one’s illness or 

injury, the fact that they were not told about an illness or 

injury tends to show that it never occurred. See, e.g.,

Fidelity Serv. Ins. Co. v. Jones, 191 So.2d 20, 29-30 (Ala. 

1966) (allowing testimony that the deceased never told 

 
AZ v. SHINSEKI 35

[s]ilence may imply assent to [a third party’s 

statement], but on certain conditions only. The 

general principle of relevancy tells us that the inference of assent may safely be made only when 

no other explanation is equally consistent with silence . . . . 

4 Wigmore on Evidence, supra, § 1071, at 102; see also, 

e.g., Vail v. Strong, 10 Vt. 457, 463 (1838) (“The mere 

silence of the party creates no evidence, one way or the 

other. There are, indeed, cases, where the silence of the 

party creates a presumption or inference against him; but 

this presumption derives all its force from the circumstances, under which the statement is made . . .”). And in 

contract disputes, evidence that other customers failed to 

complain is usually inadmissible to show that the goods 

were not defective, because there are numerous reasons 

customers might not complain about receiving defective 

goods.17

family members he was unwell prior to an alleged accident); Fogg v. Or. Short Line R.R. Co., 1 P.2d 954, 956-57

(Utah 1931) (allowing testimony from the plaintiff’s wife 

that he did not complain of any injury from a prior accident). 

17 See, e.g., S. J. Van Lill Co. v. Frederick City 

Packing Co., 141 A. 898, 903–04 (Md. 1928) (holding the 

absence of complaints from another purchaser inadmissible because, given the many possible reasons for not 

complaining, the inference that the goods were acceptable 

from the later purchaser’s failure to complain was “too 

remote to warrant its recognition as judicial proof”);

Siegel, King & Co. v. Penny & Baldwin, 2 S.W.2d 1082, 

1084 (Ark. 1928) (observing that other purchasers may 

well have been “damaged without[] complaining”). In 

Vermont Food Industries, Inc. v. Ralston Purina Co., the 

Second Circuit held that the trial court had properly 

 
36 AZ v. SHINSEKI

Fourth, there is a unique deterrent to reporting inservice sexual assaults to military authorities that is not 

usually present in criminal cases: that is the fear of 

reprisals. A servicemember who is raped by another 

servicemember, and reports that rape within the chain of

command, is making the report to a person professionally

(and perhaps personally) associated with the rapist. 

Thus, many servicemembers fear that the act of reporting

a rape to military authorities will subject them to personal and professional reprisals. See, e.g., 2010 SAPRO 

Report, supra, at 19–21, 25, 41, 95 (discussing reprisals 

and the fear of reprisals); Office of the Inspector General

of the DoD, supra, at 17–20 (similar); Gov’t Accountability 

Office, supra, at 14 (similar). This fear creates incentives 

not to report rapes to military authorities that do not 

exist in the typical criminal case in the civilian context. 

Finally, the veteran’s benefits system is based on “solicitude for the claimant.” Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 311 (1985); see also Hodge v. 

West, 155 F.3d 1356, 1362 (Fed. Cir. 1998) (“This court 

and the Supreme Court both have long recognized that 

the character of the veterans’ benefits statutes is strongly 

and uniquely pro-claimant.”). This solicitude argues 

against the use of evidence against a claimant when it has 

prohibited questions about customer complaints to a 

company’s home office because

none of these questions was probative of the real 

point the appellant was trying to get before the 

jury, namely, that no complaints concerning the 

appellant’s product had in fact been made. Many 

complaints might have been made locally, but resolved there. In other words, the absence of formal complaints at the home office might not be 

indicative of the situation in the field. 

514 F.2d 456, 465 (2d Cir. 1975). 

 
AZ v. SHINSEKI 37

doubtful pertinence. To the extent that Congress has 

relaxed evidentiary requirements in the VA context, it did

so to benefit, not penalize, claimants. See generally H.R. 

Rep. No. 100-963, at 13–14 (1988), reprinted in 1988 

U.S.C.C.A.N. 5782, 5795–96. Here, the Secretary, relying 

on empirical evidence, has expressly recognized that the 

failure to report to authorities is typical of active duty 

victims of sexual assault. See 65 Fed. Reg. at 61,132. The 

Secretary expects that many assaults will not have been 

reported to authorities, for reasons unrelated to the 

merits of the claim. Penalizing assault victims for that 

failure would hardly comport with a system in which “the 

importance of systemic fairness and the appearance of 

fairness carr[y] great weight.” Hodge, 155 F.3d at 1363. 

For all these reasons, we conclude that the VA may 

not treat a claimant’s failure to report an alleged sexual 

assault to military authorities as pertinent evidence that 

the sexual assault did not occur. 

III 

In each of these cases, the Board appears to have 

treated the absence of service records documenting the 

alleged assaults, and the absence of a report to military 

authorities, as evidence that the assaults did not occur. 

In AZ, the Veterans Court expressly acknowledged that 

the Board had given the absence of service records documenting the alleged assault evidentiary weight, but held 

that it was not error to do so, because “the Board is permitted to weigh the absence of corroborating records and 

documents against the lay evidence.” AZ, No. 10-2393, 

slip op. at 5 (Vet. App. Nov. 28, 2011) (emphasis added). 

In AY, the RO relied heavily on the absence of service 

records of the assault, but the Board mentioned the 

absence of service records only briefly, and the Veterans 

Court did not clearly decide whether such reliance was 
38 AZ v. SHINSEKI

proper.18 In both cases, the Board and Veterans Court 

also appeared to treat the veteran’s failure to report the 

assault to military authorities as evidence that the assault did not occur.

We remand to the Veterans Court for further proceedings. In each case, the Veterans Court should consider to 

what extent the Board improperly relied on the absence of 

service records documenting the alleged sexual assaults, 

or on the veterans’ failure to contemporaneously report 

the alleged sexual assaults to military authorities, as 

pertinent evidence that the alleged assaults did not occur. 

Because such an approach is unsupported by the applicable statute and regulations, contradicted by the empirical 

evidence, and contrary to general evidence law, the Veterans Court should consider whether remand to the Board 

18 We note that in both cases, the VA implied that 

the lay statements lacked probative value because they 

were not made by eyewitnesses to the alleged sexual 

assaults. See AZ, No. 06-08 672, slip op. at 15 (Bd. Vet. 

App. Jan. 22, 2010); AY J.A. 105 (Mar. 2006 Rating Decision). However, we do not think the Veterans Court 

relied on any such interpretation of section 3.304(f)(5), 

which would clearly be incorrect. The regulation expressly authorizes the submission of lay statements from 

individuals unlikely to have any opportunity to witness 

an in-service sexual assault, including clergy and the 

veteran’s family. See 38 C.F.R. § 3.304(f)(5). As the VA’s 

own adjudication manual acknowledges, sexual assaults 

are unlikely to be witnessed by third parties. See VA 

Adjudicative Procedures Manual Rewrite M21-1MR, Pt. 

III, Subpart iv, Ch. 4, Sec. H(32)(a) (2011) (“When determining the occurrence of stressors to establish service 

connection for PTSD, consider the following: . . . the 

trauma may be experienced alone, such as in cases of rape 

or assault . . . .”).

 
AZ v. SHINSEKI 39

is required so that the cases can be re-adjudicated in the 

light of the correct standard. 

VACATED AND REMANDED

COSTS

Costs to appellants.
United States Court of Appeals 

for the Federal Circuit ______________________ 

AZ,

Claimant-Appellant,

v.

ERIC K. SHINSEKI, Secretary of Veterans Affairs,

Respondent-Appellee.

______________________ 

2012-7046

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 10-2393, Judge Lawrence B. 

Hagel.

- - - - - - - - - - - - - - - - - - - - - - 

AY,

Claimant-Appellant, 

v.

ERIC K. SHINSEKI, Secretary of Veterans Affairs, 

Respondent-Appellee. 

______________________ 

2012-7048

______________________ 
2 AZ v. SHINSEKI

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 10-2390, Chief Judge Bruce E. 

Kasold. 

______________________ 

MOORE, Circuit Judge, dissenting.

The majority adopts a general, categorical rule of law 

that, at least in the military, when a person claims sexual 

assault years after the alleged incident, the absence of a 

contemporaneous report to officials able to act against the 

alleged perpetrator is irrelevant to assessing the 

credibility of the claim. According to the majority, failure 

to report a sexual assault is not relevant to whether or not 

the assault took place. The majority is wrong. AZ and AY 

are sympathetic claimants, but our jurisdiction prevents 

us from reviewing fact findings or even applications of law 

to fact. And as such, the majority was forced to adopt this 

new, categorical rule of law that is at odds with other 

courts, which have consistently found that non-reporting 

of sexual assault is relevant. I respectfully dissent. 

Under the legal standard applicable to veterans’ 

benefits cases, a veteran’s medical and service records 

and “all pertinent medical and lay evidence” must be 

considered. 38 C.F.R. § 3.303(a). In short, the VA must

consider all relevant evidence. Evidence is relevant if “it 

has any tendency to make a fact more or less probable 

than it would be without the evidence.” Fed. R. Evid.

401(a) (emphasis added); see also id. R. 402. The majority 

never applies this universally accepted standard of 

relevance. The majority accepts that the existence of a 

report to officials is relevant and admissible: it has a 

tendency to make the fact of the rape more probable than 

it would be without the evidence. Inexplicably, it denies

the converse: that the failure to report a rape has any 

tendency to make the occurrence of the rape less probable 

than it would be without the failure to report. It simply 
AZ v. SHINSEKI 3

defies credulity to conclude that a veteran’s failure to 

report a sexual assault has zero probative value and 

therefore fails the low relevancy threshold in every case. 

See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed. Cir. 

2002) (en banc) (“[T]he definition of evidence encompasses 

‘negative evidence,’ which tends to disprove the existence 

of an alleged fact . . . .”). 

The majority’s decision hinges on a study finding that 

only 15% of sexual assaults in the military were reported

between 2006 and 2012. There are several problems with 

this reliance. First, even if this number accurately 

reflects reporting of rape in the military in the 1970s and 

1980s, when these incidents allegedly occurred, the fact of 

reporting or non-reporting still meets the low relevance 

threshold: namely, non-reporting has some tendency to 

make the fact that the rape occurred less probable. It 

may well be that a low incidence of reporting would result 

in little weight being given to the non-reporting, but it 

doesn’t render that evidence irrelevant. Second, as the 

majority acknowledges, its 15% figure applies to all 

sexual assaults. It may be, however, that the reporting 

rate for the particularly severe incidents of sexual assault 

of the sort at issue in these appeals (rape) is higher. We 

do not know, and the majority admits that it has no idea. 

Maj. Op. at 19–20. The larger problem is that none of the 

studies cited by the majority were a part of the record 

below, and the VA was not given an opportunity to 

explain their import to the cases before us. Even if we 

had the authority to create new rules to protect victims of 

sexual assault, a job for Congress not the courts, we would

need to gather additional data and solicit further input 

from the affected parties in order to reach the result the 

majority writes into law today. 

The majority justifies its blanket rule by cobbling 

together a “common law” of evidence from a hodge-podge 

of sources presenting unrelated circumstances. The cases 
4 AZ v. SHINSEKI

cited by the majority address adoption by silence of the 

statements of others, exclusion of hearsay evidence, and 

even the lack of customer complaints in breach of contract 

cases. But none of these cases support the proposition 

that the failure to complain of rape to the authorities is 

not relevant to the question of whether the rape occurred.

We do not need to resort to cases of questionable 

significance because there exist on-point authorities

dealing with sexual assault. These authorities make clear 

that the fact of non-reporting is routinely admitted into 

evidence. See, e.g., State v. W.B., 17 A.3d 187, 206–07 

(N.J. 2011) (approving the jury instruction that “you may 

consider the silence/delayed disclosure along with all of 

the other evidence including [complaining witness’s] 

explanation for his/her silence/delayed disclosure when 

you decide how much weight to afford to [complaining 

witness’s] testimony”); 18 Pa. C.S.A. § 3105 (1995)

(“Prompt reporting to public authority is not required in a 

prosecution [of sexual offenses]: Provided, however, That 

nothing in this section shall be construed to prohibit a 

defendant from introducing evidence of the complainant’s 

failure to promptly report the crime.”). Indeed, a major 

issue in this area of law is the admissibility of expert or 

other testimony to explain why victims of sexual assault 

do not report the crime or delay reporting, which suggests 

that the admissibility of non-reporting itself is not in 

question. See, e.g., State v. Obeta, 796 N.W.2d 282 (Minn. 

2011); State v. Hicks, 535 A.2d 776 (Vt. 1987); State v. 

Rizzo, 640 N.W.2d 93 (Wis. 2002). Cf. Jensen v. 

Lawrence, 162 P. 40, 42 (Wash. 1916) (holding, in a civil 

rape case, that “[a] delay or even failure to complain at all 

may be accounted for by proof of circumstances excusing 

such delay”). Contrary to the majority’s suggestion, I find

no indication that any of these authorities are motivated 

by special solicitude for criminal defendants. Evidence of 

non-reporting is admitted because it is relevant. 
AZ v. SHINSEKI 5

While most jurisdictions appear to have rejected the 

presumption that a failure to make a contemporaneous 

report means that the assault did not occur, the majority 

cites no authority denying the relevance (and 

admissibility) of that evidence. For example, the majority 

cites Commonwealth v. Licata, which states that the “lack 

of a fresh complaint in no way necessarily implies lack of 

rape.” 591 N.E.2d 672, 674 (Mass. 1992) (emphasis 

added). Licata does not say that the lack of a complaint to 

the authorities is categorically irrelevant, and neither do 

any of the other cases cited by the majority. For example,

People v. Brown, 883 P.2d 949 (Cal. 1994), cited by the 

majority, directly contradicts the majority’s holding: 

“when the victim of an alleged sexual offense did not 

make a prompt complaint but instead disclosed the 

alleged incident only some time later, evidence of the fact 

and circumstances surrounding the delayed complaint . . . 

may be relevant to the jury’s evaluation of the likelihood 

that the offense did or did not occur.” Id. at 958. Accord 

Commonwealth v. Lane, 555 A.2d 1246, 1250 (Pa. 1989) 

(“The lack of a prompt complaint by a victim of a crime, 

although not dispositive of the merits of the case, may 

justifiably produce a doubt as to whether the offense 

indeed occurred, or whether it was a recent fabrication by 

the complaining witness.”).

The majority’s real issue is with the way that the VA

weighed the fact of non-reporting, not that fact’s 

admissibility. I may well agree with the majority that the 

VA clearly erred by according undue probative value to 

the fact that AZ and AY did not report the assaults to the 

authorities.1 But we have no jurisdiction to review the 

1 I note that the majority’s opinion makes it appear

as if the VA’s decisions in these cases rested largely on 

the fact of non-reporting. This is unfair to the VA, and

simply inaccurate. The VA clearly considered other 

 
6 AZ v. SHINSEKI

VA’s weighing of the evidence. See King v. Shinseki, 700 

F.3d 1339, 1345–46 (Fed. Cir. 2012); Madden v. Gober, 

125 F.3d 1477, 1481 (Fed. Cir. 1997); see also 38 U.S.C. 

§ 7292(d)(2). 

 The majority’s additional rule that the absence of a 

report of sexual assault in the veteran’s records cannot be 

considered by the VA is completely inapposite to the 

appeals before us. AZ and AY admitted in the 

proceedings below that they did not report the alleged 

assaults to the authorities until long after they had 

occurred. “The Veteran has stated that she did not report 

sexual assault to military or civilian authorities.” AZ J.A. 

29 (emphasis added); see AZ Br. 9; see also AY J.A. 19 

(noting that AY stated at a hearing that “[s]he did not 

report the incident to police at the time that it occurred”). 

Because AZ and AY positively admitted that they made 

no contemporaneous report of rape, the absence of a 

report in their records cannot possibly have any bearing 

on the outcome of the cases before us. Furthermore, there 

is not the slightest basis for thinking that reports of rape 

that are made to the authorities do not appear in the 

records. The majority’s discussion of the relevance of 

absence of reports of rape is pure dicta. 

Even if these veterans’ records mattered, the 

majority’s conclusion that the absence of a report is 

irrelevant is unsupportable for similar reasons as the fact 

evidence. See, e.g., AZ J.A. 28 (“[T]he reports of 

misconduct occurred relatively consistently throughout 

the Veteran’s period of service, and . . . did not suddenly 

begin at point in time concurrent with the beginning of 

alleged assaults.”); id. at 31 (noting recent stressors 

unrelated to service); see also AY J.A. 22–23 (noting that 

AY’s demeanor while in service contradicted her claim of 

being depressed); id. at 23 (noting inconsistencies in AY’s 

accounts of the incident). 

 
AZ v. SHINSEKI 7

of non-reporting: the relevancy threshold is low, and the 

absence of reports clears it. The VA in these cases did 

exactly what the applicable statute commands—it gave 

“due consideration” to the service and medical records of 

the veterans claiming service-connected disability. 38 

U.S.C. § 1154(a)(1) (2012); see also 38 C.F.R. § 3.303(a). 

Not only are the statute and regulations clearly 

contrary to the majority’s holding, but in Buchanan v. 

Nicholson, we held that “the lack of contemporaneous 

medical records may be a fact that the Board can consider 

and weigh against a veteran’s lay evidence.” 451 F.3d 

1331, 1336 (Fed. Cir. 2006); see also id. at 1337 (“Nor do 

we hold that the Board cannot weigh the absence of 

contemporaneous medical evidence against the lay 

evidence of record.”). In doing so, Buchanan simply 

restated well-established law—the VA may consider the 

lack of contemporaneous medical records in the veteran’s 

file because § 3.303(a) grants it the power to do so. We 

cannot ignore this binding precedent. 

The majority attempts to justify its departure from 

the governing statute and regulations by arguing that the 

absence of reporting in a veteran’s records ought not be 

admissible because it would not meet hearsay exceptions 

codified in Rules 803(7) and 803(10) of the Federal Rules 

of Evidence. But veterans’ benefits cases allow hearsay, 

and thus evidence does not need to meet any of the 

exceptions to the rule against hearsay to become 

admissible. 

*** 

When Congress sees the need to protect victims of 

sexual assault, it acts. For example, Congress decided 

that evidence of an alleged sexual assault victim’s prior 

sexual history is categorically inadmissible to prove that 

the assault did not occur. Fed. R. Evid. 412(a)(1). 

Congress also amended the FREs to allow admission in 
8 AZ v. SHINSEKI

criminal cases of evidence that a defendant previously 

committed sexual assault. Id. R. 413(a). Congress did 

not, however, enact a rule stating that evidence of nonreporting of sexual assault is categorically inadmissible—

be it in criminal, civil, or VA settings. Today, the majority 

usurps Congress’s role with its broad proclamation on the 

admissibility of certain evidence in the VA system. 

AZ and AY are sympathetic claimants. And as a 

judge, a woman, and a human being, I am dubious about 

the weighing of the evidence and the fact findings of the 

VA in this case. But the applicable statutes and basic 

principles of evidence law leave us without power to help 

them. We are not allowed to assess the probative value of 

a veteran’s failure to report a sexual assault to the 

authorities and mandate to the VA what inferences it may 

draw from that failure. Nor do we have jurisdiction to 

weigh the absence of a report of sexual assault in the 

veteran’s records. Solicitude for veterans does not justify 

making up rules as we go along.