AZ v. Shinseki, docket no. 2012-7046 (Fed. Cir. Sept. 30, 2013)
In evaluating PTSD cases based on military sexual assault, the Federal Circuit held that “the absence of a service record documenting an unreported sexual assault is not pertinent evidence that the sexual assault did not occur.” The Court further held that VA and the 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.”
The Court found that the lack of service records showing that an alleged assault occurred or was reported in service is NOT pertinent evidence that the assault did not happen because it is not reasonable to believe that these assaults are reported. The Court relied on statistics from the Department of Defense showing that the vast majority of these incidents are not reported to military authorities. The Court also relied on the common-law approach that gives weight to the absence of evidence only if the event was normally recorded. In-service sexual assaults are not usually reported – and therefore are normally not recorded – so it is not reasonable to construe the absence of such evidence (reporting/recording) as negative evidence against the claim. The Court in this case stated that “where an alleged sexual assault, like most in-service sexual assaults, is not reported, the absence of service records documenting the alleged assault is not pertinent evidence that the assault did not occur.” AZ v. Shinseki, at *28-29.