  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 claimant-
appellant 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 Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for respondent-
appellee. 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 Coun-
sel. Of counsel on the brief were DAVID J. BARRANS, Depu-
ty 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 Wash-
ington, DC.

    STEVEN M. MAGER, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for respondent-
appellee. 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 Vet-
erans 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 unreport-
ed 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 prob-
lems including PTSD. She attributes her PTSD to sexual
and physical abuse by the father of her child, a non-
commissioned 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 connec-
tion 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 per-
      sonnel file were review [sic] for verification of the
      assaults or at least some indication you were as-
      saulted. 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 pro-
      ceedings 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 com-
    petent evidence of record corroborating the Veter-
    an’s allegation that she was sexually assaulted in
    service. . . .
        Here, the evidence of record does not corrobo-
    rate the Veteran’s account . . . . [T]here is no doc-
    umentation in the service records to indicate that
    the Veteran reported having been personally as-
    saulted, 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 sex-
    ual or physical assault itself. . . .
        . . . The Veteran has stated that she did not
    report sexual assault to military or civilian au-
    thorities. It is noted that a positive pregnancy
    test was reflected in the service treatment rec-
    ords; however, there is no notation that the preg-
    nancy was a result of sexual abuse.
Id. at 15 (emphasis added).
    The Board acknowledged that the three lay state-
ments 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 prob-
lem,” 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 as-
      saults 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 proba-
tive,” because “the Board is permitted to weigh the ab-
sence 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 considera-
tion to the evidence pertaining to AZ’s pregnancy, includ-
ing 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 jurisdic-
tion 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 com-
mitted 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 reo-
pened and submitted three more lay statements from
additional individuals who knew her during service. ES,
a fellow soldier stationed with AY during training, report-
ed 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 subse-
quent 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 at-
      tempted suicide while in service. The records pro-
      vided no information which would be indicative of
      a personal assault. . . .
         Military Personnel Records provided no evi-
      dence 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 insuf-
      ficient 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 acknowl-
edged the lay statements, but found that they were “di-
rectly 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 contradict-
ed 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 experi-
enced [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 evi-
dence, the Board determined that “the evidence is insuffi-
cient 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 uncorrobo-
rated, but contradicted by the absence of records docu-
menting 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 “con-
tradicted” 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 [al-
     leged 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 in-
service 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 ques-
tions. 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 ques-
tion, related to the first, is whether the fact that no report
of the alleged sexual assault was made to military author-
ities 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. Prin-
cipi, 353 F.3d 937, 938 (Fed. Cir. 2003). We have jurisdic-
tion 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 infor-
mation and lay and medical evidence of record” in deter-
mining 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) (simi-
lar). 1
    Establishing service connection for a PTSD claim re-
quires (1) a medical diagnosis of PTSD; (2) “a link, estab-
lished 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 considera-
tion,” 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 provid-
ed 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 ac-
      count of the stressor incident. Examples of such
      evidence include, but are not limited to: records
      from law enforcement authorities, rape crisis cen-
      ters, 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 in-
service 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 oc-
curred. 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 rele-
vant, 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 situa-
tion in which confirmatory service records were absent.
There, a veteran seeking service connection for schizo-
phrenia challenged the Board’s refusal to credit several
lay statements reporting that he had suffered from symp-
toms of schizophrenia “while in service or soon thereaf-
ter.” 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 credi-
bility,” 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 con-
temporaneous 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 in-
service 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 authori-
ties, and therefore such records do not exist. The regula-
tory 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 annual-
ly on “[t]he number of sexual assaults [involving] mem-
bers of the Armed Force[s] that were reported to military
officials,” see Ronald W. Reagan National Defense Author-
ization 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 mem-
bers] that occur each year are reported to a DoD authori-
ty.” 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 unre-
     ported.
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 [in-
service] 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, non-
     consensual 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, en-
gag[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 report-
ed the assault to a military authority. 2012 SAPRO
Report, supra, at 53. 4
    VA has long recognized that the underreporting of in-
service sexual assaults is a problem for claimants. As
early as 1996, the VA claims manual
      state[d], with respect to claims based upon a per-
      sonal assault: “The service record may be devoid
      of evidence because many victims of personal as-
      sault, especially sexual assault and domestic vio-
      lence, 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 in-
service 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 ser-
vicemembers 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 confi-
dential 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 contact 5 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 gener-
ally Defense Manpower Data Center, DMDC Report No.
2010-025, 2010 WGRA: Overview Report on Sexual As-
sault (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 perpetra-
     tor) to provide for basic needs including medical
     and psychological care. . . .
     Because organizational cohesion is so highly val-
     ued 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 re-
port[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/manual-
pdf/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 esti-
mates 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 defini-
tion). “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 defend-
ant’s spouse, “with the intent to gratify the lust or sexual
desires of the accused.” See UCMJ art. 128 (2005) (defin-
ing 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 af-
      fecting them most] to an authority or organiza-
      tion.
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 nonreport-
ing 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 [ser-
vice 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



      8Appellants 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 non-
payment, 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) (em-
phasis added). The rule is logical because where a com-
prehensive record of events is regularly kept, as in an
archive of land grants, “[t]he absence of any record evi-
dence 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 gener-


     9  A minority of courts appear to have held that evi-
dence 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 estab-
lished by proof that the books contain no such entry”); see
also 5 Wigmore on Evidence, supra, § 1531, at 463 (criti-
cizing 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


      10See 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 Arkan-
sas” as proof that he was unlicensed); Eisminger v. Mitch-
ell, 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 evi-
dence 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 evi-
dence of the absence of an entry from a company’s account
books would generally be admissible to show a transac-
tion 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 accu-
rate record of all the business of the corporation, and
particularly that under the method of bookkeeping adopt-
ed by the corporation the books would disclose the exist-
ence 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 witness-
es 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 “syn-

41 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 analo-
gy to Rule 803 “on the principle that the absence of an
entry in a business record is probative of the non-
occurrence 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 conduct-
ed 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


       Some courts characterized testimony about the
      11

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 testimo-
ny 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 ad-
missibility 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 oc-
curred.”    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 regard-
less 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 com-
mittee’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) (admit-
ting 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 common-
law 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 [administra-
tive 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 repug-
nant” 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 condi-
      tion can be taken as proof that a doctor did not ob-
      serve 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 recent-
ly applied the rule stated in Buczynski to a PTSD claim
based on alleged in-service sexual assault. See Nesbit-
Netcliff 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 lack-
ing probative value (an inconclusive medical report re-
counting 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 ab-
sence 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 deter-
mination, 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 report-
ed, 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’ admit-
ted 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 Evi-
dence”) (collecting cases); State v. Hill, 578 A.2d 370, 374–
77 (N.J. 1990) (discussing the history of this presump-
tion). Therefore, it was thought that a victim’s failure to
promptly report the rape to anyone was a “suspicious
inconsistency”:

      13We 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 self-
     contradiction . . . .
         [Where] the accused denies [that the rape oc-
     curred], its very commission thus coming into is-
     sue, 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 hap-
     pened, was in effect an assertion that nothing vio-
     lent 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 testi-
     mony.
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 theo-
ry 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 indi-
viduals 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 recog-
nize 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 some-
one 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 Ameri-
ca”). 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 prose-
cution’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 ambigu-
ous 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 val-
      ue on the question of whether a person has ex-
      pressed tacit agreement or disagreement with
      contemporaneous statements of others. . . . Fail-
      ure to contest an assertion . . . is considered evi-
      dence 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 testimo-
ny that no statement was made. 15 Similarly, courts

      15For 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 con-
      tract [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] noth-
ing, 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 in-
      ference of assent may safely be made only when
      no other explanation is equally consistent with si-
      lence . . . .
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 circum-
stances, 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 acci-
dent); 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 acci-
dent).
      17See, 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 inadmissi-
ble 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 in-
service 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 person-
al 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 “so-
licitude for the claimant.” Walters v. Nat’l Ass’n of Radia-
tion 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 re-
     solved there. In other words, the absence of for-
     mal 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 docu-
menting the alleged assault evidentiary weight, but held
that it was not error to do so, because “the Board is per-
mitted 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 as-
sault did not occur.
    We remand to the Veterans Court for further proceed-
ings. 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 applica-
ble statute and regulations, contradicted by the empirical
evidence, and contrary to general evidence law, the Vet-
erans 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 Deci-
sion). 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 express-
ly 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 deter-
mining 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


      1I 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 non-
reporting 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.
