Az v. Shinseki
731 F.3d 1303
| Fed. Cir. | 2013Background
- AZ and AY claimed PTSD due to in-service sexual assaults; service records did not reflect assaults and they admitted not reporting them to authorities.
- VA, RO, Board, and Veterans Court denied or limited benefits based in part on absence of records and lack of contemporaneous reporting.
- Veterans argue absence of records and failure to report are not probative of nonoccurrence; VA sought to rely on such absence.
- Court discusses that PTSD requires medical diagnosis, link to in-service stressor, and credible corroboration; 3.304(f) governs evidence, including lay evidence.
- DoD and VA literature show underreporting of in-service sexual assaults; legislative/regulatory context acknowledges reporting gaps.
- Court vacates and remands to reconsider in light of correct standard: absence of records or absence of reporting is not per se probative of nonoccurrence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May absence of contemporaneous records prove nonoccurrence? | AZ/AY contend absence of records is not probative of nonoccurrence. | VA may weigh absence of records against lay evidence to assess credibility. | Absence of records is not pertinent evidence of nonoccurrence; remand. |
| May failure to report to military authorities be considered evidence of nonoccurrence? | Non-reporting is relevant and admissible; it may affect credibility. | Board relied on non-reporting as corroboration of nonoccurrence. | Failure to report is not per se credible evidence of nonoccurrence; remand. |
Key Cases Cited
- Fagan v. Shinseki, 573 F.3d 1282 (Fed.Cir.2009) (concerning pertinence of inconclusive medical evidence and lack of probative value)
- Buchanan v. Nicholson, 451 F.3d 1331 (Fed.Cir.2006) (absence of contemporaneous medical records may be weighed against lay evidence)
- Buczynski v. Shinseki, 24 Vet.App. 221 (Fed.Cir.2011) (absence of a medical record cannot prove a condition; silence not probative)
- Horn v. Shinseki, 25 Vet.App. 231 (Fed.Cir.2012) (service records silent on condition not contradicting veteran's claim)
- Chesapeake & Delaware Canal Co. v. United States, 250 U.S. 123 (Supreme Court 1919) (absence of an expected entry can indicate nonpayment or nonoccurrence when records normally would include it)
- United States v. Robinson, 544 F.2d 110 (2d Cir.1976) (absence of a record can be probative of nonoccurrence if records regularly kept)