*1 Maj. Op. at 1289-90.5 The rise to a money-mandating duty. deny- tions. ing standard to establish waiver under the legitimate claims for compensation un- however, Act, Tucker Indian made Act, der the Indian Tucker majority the presents “pragmatic the higher when case sight loses of what the were in- statutes plain- The considerations.” Id. Wolfchild at accomplish tended to the of time their only establish, tiffs needed to and did es- above, For enactment. the reasons stated tablish, can the 1888-1890 Acts be I would affirm the finding Claims Court in interpreted impose duty on fairly the plaintiffs Wolfchild are entitled to Mountain, States. United See White 537 litigate judgment and seek Samish, 1126; U.S. 123 S.Ct. 419 government improper for the allocation of F.3d at 1365. land set revenues aside their benefit. I Accordingly, respectfully dissent-in-part.
B. of Statute Limitations adjudicated I Because read claims
today falling within the terms of Indian Statute, Accounting general
Trust six-
year period statute limitations apply. Shoshone Indian Tribe Wind States,
River v. Reservation United (Fed.Cir.2004). F.3d 1346-47 I af- AZ, Claimant-Appellant, firm view of the Claims Court statute limitations did not commence to plaintiffs’ run on the claims until Wolfchild SHINSEKI, Secretary Eric K. accounting there under Affairs, Respondent- Veterans beneficiary could determine whether there Appellee. has been loss. Claims Court Remand Decision, 96 Fed.Cl. 335. For the rea- AY, Claimant-Appellant, opinion, sons stated Court’s Claims I depart majority from the would af- firm the conclusion the Wolfchild SHINSEKI, Secretary Eric K. plaintiffs’ pursuit damages money Affairs, Respondent- Veterans pre-1980 appropri- revenuеs derived from Appellee. timely.
ated lands 2012-7046, Nos. 2012-7048. IV. Conclusion of Appeals, United States Court statutes, meaning of plain Federal Circuit. historical context Appro- Sept. 2013. Acts, priations special and the relationship government between and the Tribes all
weigh against majority’s conclusion Appropriations not give Acts do may government itWhile be true that resolution of stance that the and had this created burdens, power case raise administrative to avoid. It is not in Court's government province just should burdens not relieve the to avoid an otherwise and cor- treaty obligations, giv- imple- especially judgment grounds from own rect its its impose en burden has made more diffi- mentation would an administrative time, government. passing cult due circum- burden on
partment Affairs, of Veterans Washing- ton, DC. Carpenter,
Kenneth M. Carpenter, *3 Chartered, KS, of Topeka, argued for claimant-appellant in appeal no.2012-7048. Ravin, On the brief was Sean A. of Wash- ington, DC. Mager, Attorney,
Steven M. Trial Com- Branch, Litigation Division, mercial Civil Justice, Department United States Washington, DC, argued respondent- for appellee. With him on the brief were Delery, Acting Stuart F. Attor- Assistant General, ney Davidson, Jeanne E. Di- rector, Jr., and Martin F. Hockey, Assis- tant Director. Of counsel was Elizabeth Hosford, M. Senior Trial Counsel. Of on counsel the brief were Michael J. Ti- minski, Deputy Counsel, Assistant General Warren, Tracey Attorney, and P. United Affairs, Department States of Veterans Washington, DC. DYK, CLEVENGER,
Before MOORE, Judges. Circuit Stolz, Chisholm, M. Zachary Chisholm & Opinion the Court filed Circuit Providence, RI, Kilpatrick, argued for Judge Dissеnting opinion DYK. filed claimant-appellant appeal no. 2012-7046. Judge Circuit MOORE. Ravin, On the brief was Sean A. of Wash- ington, DC. DYK, Of counsel was M. Judge. Kenneth Circuit Carpenter, Carpenter, Chartered, Tope- Veterans AZ AY filed claims with ka, KS. (“VA”) Department of Veterans Affairs Mager, Attorney, seeking
Steven M. Trial Com- disability compensation post- Branch, Division, (“PTSD”) Litigation mercial Civil traumatic stress disorder al- Justice, Department United States leged have resulted from sexual assaults DC, Washington, argued for respondent- during that occurred service. The veter- appellee. With him on the were brief ans’ service records do not reflect Delery, Acting Stuart F. reports Assistant Attor- of the sexual assaults. General, ney Davidson, (“RO”), Jeanne E. Di- Regional The VA Board of Office rector, Manhardt, (“Board”), Kirk T. Assistant Veterans’ Claims Court (‘Veterans Director. Of counsel was M. Appeals Elizabeth for Veterans Claims Court”) Hosford, rejected Senior Trial Of counsel part Counsel. the claims in Barrans, Depu- the brief were David J. ground that the veterans’ service records ty Counsel, Tracey Assistant reports General did not include of the as- Warren, P. Attorney, saults, United States De- and because the veterans stated AZ’s contemporaneously to fami- disclosed reported never assaults were ly members. military authorities. a claim for February AZ filed argue that Board and
The veterans The VA RO service connection for PTSD. by treating the ab- erred Veterans Court claim, noting her that her service denied sexual as- reports sence of a sexual not document that records did the as- pertinent saults as (June had occurred. J.A. 239-40 agree with the saults did not occur. We Decision). Rating of a service rec- veterans that the absence unreported sexual as- documenting ord reconsideration, and requested AZ sub- evidence that is not pertinent sault siblings, from three mitted statements *4 further not occur. We sexual assault did reported outgoing prior was who she and Veterans Court hold that the Board communicative became less service but a veteran’s failure to rely not The meeting alleged her abuser. after assault to mili- report an in-service sexual siblings stated that in “about her fourth or pertinent evidence that tary authorities as pregnancy fifth month of told us she [AZ] did not occur. We va- sexual assault assaulted, sexually verbally had been cate and remand. [J.H.],” Sgt. by abused and beaten AZ not the assaults to report did BACKGROUND military authorities she was afraid because think would be believed. and did not she I. AZ 233; AZ AZ see also 235. J.A. J.A. honorably on active AZ served Appellant request explained for AZ’s reconsideration July duty from March 1973 to 1974. She report that “she did not these incidents service, when left pregnant was she military legal authorities” because she in gave a October of daughter birth to assaulted, sexually young girl, a ver- “was diagnosed In she was 1974. superior bally abused and beaten including psychiatric problems PTSD. She in fear of her life.” [officer] and she was physical her PTSD attributes to sexual (July Request for AZ J.A. 232 child, a by the father of her noncom- abuse Reconsideration). superior missioned officer of rank: The RO denied service connection. again service, sexually I was as- While although siblings AZ’s The RO found [J.H., by Sgt. supe- saulted and beaten told reported had that she them about I officer]. rior non-commissioned be- her during pregnancy, assault pregnant one of the sexual came after and mili- [y]our service medical records January February on about or assaults personnel for tary [sic] file were review 21, 1974, I 1974. On October assaults or least verification of the daughter a result of one of the sexual you were assaulted. some indication assaults. negative medical records are The service (Feb. in Sup- AZ Statement J.A. you any made or comments Claim). port allegedly began She hav- episodes regarding beat- physicians AZ ing nightmares while still service. ings or sexual trauma. sexual assaults did not (Feb.2006 AZ Statement J.A. 228 authorities, and her service rec- Case). any report of an as- ords do reflect Board, below, which re- However, appealed AZ sault. as discussed there evidentiary develop- manded for further assaults were (Bd.Vet. AZ, re positive pregnancy ment. No. 06-08 test was reflected in 2008). records; App. however, Mar. Service connection the service treatment denied, is no again and the Board affirmed there notation that pregnancy AZ, 2010. result January, that denial In re of sexual abuse. 2010). (Bd.Vet.App.
No. Jan. 06-08 672 added). Id. at 15 Board determined AZ’s service The Board acknowledged that the three any complaints, records “do show support statements submitted in diagnosis any psychiatriс treatment or claim AZ’s “reflected] Veteran’s re- injuries any reports disorder from a or ports physical of sexual and abuse.” Id. service,” id., personal slip during However, the Board found that “service 6-7, op. at treatment records and the of exam- there is no documentation the service prior separation ination no show com- records to indicate that Veteran re- plaints psychiat- findings indicative of assaulted, ported having personally “[rjecords problem,” ric instigated proceedings she service do not document in service as- Moreover, her attacker. sault.” Id. at The lay statements service treatment Veteran’s deficit, were insufficient to overcome this *5 contain no evidence that the Veteran because “none these individuals ... sought alleged treatment for the sexual claimed to personal witness assault physical or assault itself. place.” Therefore, take Id. 15. the statements “not as probative Id. at The that were as the 15. Board stated under “[sjervice contemporaneous the service ... that applicable regulations, de- records do not reflect that the partment support, records Veteran was as- must contradict, while on testimony duty.” the saulted active Id. at 16. regard- veteran’s (em- ing Relying the absence of non-combat stressors.” Id. at 10 service records added). Board, assault, phasis According of the records of a disciplinary to the assault, problem predating the [t]he crux the ... is whether issue indicating service medical record AZ competent there is evidence of record married,” “plann[ed] getting documen- corroborating the allegation Veteran’s possible post-service tation of stressors that sexually she was in ser- assaulted unemployment, such as other evi- vice. ... dence, the Board concluded that “the evi- Here, the evidence of record does not to confirm dence record is insufficient corroborate Veteran’s account.... [alleged assault] that occurred.” Id. is no documentation in ser- [TJhere at 15-18. vice that records indicate the Veteran reported having personally as- appealed AZ Court. Veterans saulted, alia, that instigated proceed- she argued, She inter that Board im- ings against rejected her attacker. properly siblings’ her statements Moreover, the Veteran’s service treat- solely because there was no documentation ment records contain no that evidence sexual of the assault her service rec- sought Veteran treatment ords: it- physical sexual or assault Secretary’s Given that own [VA] self. ... procedures acknowledges manual that
... The Veteran are very has stated that she few in-service assaults docu- mented, perplexing did not sexual assault to it is that the Board It is civilian authorities. noted that would use the lack documentation of entitlement to service The RO denied diminishing er. as a basis assault connection. probative weight statements. Brief the Vet- (Appellant’s
AZ J.A. 294 requested AY that her August Court). erans three reopened and submitted claim be v.AZ Court affirmed. The Veterans from additional indi- lay more statements Shinseki, (Vet.App. Nov. No. 10-2393 ES, during knew her service. viduals who 2011). the Board did not err It found that during AY fellow soldier stationed against lay by weighing “these statements AY her about training, reported that told f[i]nd[ing] evidence of record other day after it oc- the sexual Board probative,” because “the them less curred, subsequently AY became absence of cor- permitted weigh AH, suicide. despondent discussed roborating records and documents subsequent duty AY’s roommate at her Id., slip op. record.” lay evidence of AY assignment, reported attempted Likewise, found 5. the Veterans Court treatment for the inci- suicide and received gave due consideration Board hospital. at a base AY’s sister stated dent in- pregnancy, to AZ’s pertaining evidence military, AY prior entering was indicat- the lack of medical records cluding afterward, “cra- outgoing, she ing that result pregnancy zy.” AYJ.A. stating again “[t]he service connection. again RO denied weigh the absence permitted Board is acknowledged “pro- The RO that AY corroborating and documents [four individuals] vided statements from of record.” Id. at against the they you knew while support who timely appealed 7. AZ Veterans you and that told them about the decision to court. We Court’s *6 (Mar.2006 De- rape.” Rating AY J.A. 105 §
jurisdiction pursuant 38 U.S.C. cision). there “no But RO found as- evidence” corroborate AY II. sault: honorably active Appellant AY served Records ... Sewice Medical failed July duty July from 1980 to 1983. She support provide any evidence to that in 2002. She diagnosed with PTSD raped attempted or suicide you were attributes her PTSD to a sexual assault provided The while in service. records by her during committed another soldier be no which would indica- information Her military training. service records personal tive assault.... a report contain no of sexual record assault, provided Military Personnel Records treatment any personnel problems problems. She stated that she no evidence psychiatric mili- while service.... reported rape assault to did not below, tary As authorities. discussed Service connection has been denied there was contem- is evidence since there is insufficient evidence to poraneously to other reported individuals. you support raped were while you provided The a claim for service. statements AY filed service disorder, family in- and were insuf- your for a friends psychiatric connection your claimed PTSD. AY’s submitted ficient to substantiate cluding ex-husband stressor, claim, since none of them witnessed support of her stat- statement incident, only inci- ing him and knew the that she told about the your alone. The togeth- were in dent statements they assault while service due (Vet. you records to shoio that at 2 slip op. WL failed 2011). App. Aug. while in service. Veterans Court difficulties you disagreed, pointing lay Your had com- out that the records show state merely uncorroborated, ments were not There is mendable service. no but by the you that can contradicted аbsence records evidence substantiate documenting treatment for while in the suicide at raped were service. Therefore tempt as described AH. See id. The service connection for PTSD is de- Court also .... observed the records com nied mending duty performance AY’s and de added). (emphases Id. meanor lay “contradicted” the statements AY appealed to the Board. The Board AY reporting depres suffered from acknowledged statements, lay psychiatric sion and other problems after they “directly found that were contradict- Thus, the sexual assault. Id. evidence,” ed other and that “in this [although AY submitted statements re- case, strongly other evidence diminishes garding [alleged lay assault] AY, probative value.” In re the[ir] No. witnesses submitted regard- statements 960, slip op. at 14 (Bd.Vet.App. Oct. ing her demeanor after [alleged as- 2009). The Board observed that AY sault], the Board found them inconsis- [alleged “did not assault] tent with other evidence in the record occurred,” police at the time that it or “to therefore credible. anyone immediately”; that her service rec- Id. Concluding rejected that “the Board ords no of psychiatric contained lay permissible grounds: evidence treatment; and that “no there was record internal inconsistencies contradictions reported the Veteran she was record,” with other evidence in the sexually personnel.” assaulted medical Veterans Court affirmed the Board’s find- Id. at 11-12. The found that Board these ing that supporting there was “no credible statements, lay omissions contradicted the corroborating the inservice as- moreover, that AY’s “service records sault.” timely appealed Id. AY to this appeared] to be inconsistent her re- jurisdiction court. pursuant We have to 38 ports indicating statements U.S.C. 7292. experienced Veteran de- [severe] *7 pression during Thus, at 14. service.” Id. lay “the statements submitted the Vet- cases, Following argument oral in both eran insufficient to [we]re corroborate her requested supplemental we and received claimed stressor.” at 15. in- Citing Id. briefing parties question from the on the consistencies AY’s accounts of the al- “whether, of considering disability assault, leged service commending assault, claim based on in-service sexual duty performance
AY’s “cheerful de- may rely properly [VA] on the absence meanor,” evidence, and other the Board of contemporaneous service records re determined “the evidence is insuffi- porting sexual assault.” See AZ v. Shin cient to confirm the occurrence of [the (Fed.Cir. seki, 12, 2013); 2012-7046 Mar. alleged assault.” at 15-16. sexual] Id. (Fed.Cir. Shinseki, AY v. Mar. 2013). AY appealed, contending “that improperly lay
Board found the evidence DISCUSSION merely credible because was unac- companied by contemporaneous medical These two but im- simple cases involve Shinseki, portant whether, See questions. evidence.” AY v. No. 10- The first is 1310 determining of service on evidence record” a PTSD claim based adjudicating
when 5107(b), assault, connection, § U.S.C. an in-service lay thаt medical and requires statute also contempo- the absence may treat Board “pertinent,” be see U.S.C. sex- evidence reporting service records raneous 1154(a)(1). § statute re- particular, that the pertinent evidence ual Secretary adopt regula- quires occur. The second VA sexual assault did first, is whether tions question, related to no sexu-
the fact that that in each case where a vet- requiring military authorities al assault was made seeking service-connection eran evidence should be considered disability due consideration shall be occur. did not sexual assault given places, types, and circum- veteran’s service as stances (apart from This review court’s record, by such veteran’s service shown issues) ques is limited constitutional organization history official each 7292(d), law, § and our U.S.C. tions served, such in which such veteran vet- is without deference. legal issues review records, pertinent eran’s medical and all (Fed. 937, 938 Principi, F.3d Cook v. medical and evidence. Cir.2003). jurisdiction to We review added); Id. see also C.F.R. legal determinations Court’s Veterans 3.303(a) (similar).1 § types “the of evidence respect may claim for benefits.” support Establishing for a service connection Nicholson, F.3d Buchanan (1) requires diagno claim a medical PTSD (Fed.Cir.2006); (holding id. (2) PTSD; link, “a sis of established “lay type evidence that evidence is one evidence, current [the] medical between considered, submitted, if when must be stressor”; symptoms and an in-service benefits”); disability veteran’s claim seeks that the supporting “credible Shinseki, Fagan 573 F.3d see also occurred.” 38 claimed in-service stressor (Fed.Cir.2009) (holding Vet 3.304(f). “[Corroborating C.F.R. evi by disregarding did not err erans Court dence of an in-service stressor inconclusive, opinion medical nonprobative provided by lay evi some situations be evidence, pertinent one because it was “not Org. dence.” See Nat’l Advo Veterans’ connection). way or the other” cates, Affairs, Sec’y Inc. v. Veterans jurisdiction to Accordingly, we have hear (Fed.Cir.2003) (upholding F.3d 1286; appeal. Fagan, 573 F.3d 3.304(f)). validity of section When Buchanan, 451 F.3d person claim is based on “in-service PTSD assault,”
al which includes sexual regulation provides I *8 sources other than the evidence from A may veteran’s service records corrobo- statute, account of stres- required the VA is “con- rate veteran’s By lay Examples and and sor incident. of such evidence sider all information medical existing places, "the provisions 1. service records of The dissent cites statute regulations supposedly VA that are con- such veteran’s types, and circumstances of trary majority's holding. to the Dissent 1154(a)(1). § We U.S.C. service.” See 38 below, provi- these 1326. But discussed given must agree that service records be such are not addressed to the absence of sions consideration," they where exist. "due Rather, they are addressed service records. include, records but are limited to: The absence certain evidence authorities, (or rape may pertinent from if law enforcement be it tends to disprove centers, counseling crisis mental heаlth prove) material Forshey fact. See centers, physicians; preg- (Fed.Cir. or hospitals, Principi, F.3d 2002) (en banc) (“[T]he nancy tests for trans- sexually tests or definition of evi diseases; mitted encompasses statements ‘negative evidence,’ dence members, roommates, family ser- fellow to disprove which tends the existence of an fact....”). members, clergy. Buchanan, vice or alleged we ad dressed situation in confirmatory 3.304(f)(5). § Supporting evidence found There, service were absent. a vet sources, if credible is pertinent, such seeking eran service connection for schizo positive evidence inservice stressor phrenia challenged Board’s refusal to that the must consider. VA lay credit reporting several statements There that a record dispute is no service symptoms he suffered from assault, if documenting sexual schizophrenia “while in service or soon existed, would evidence supporting be thereafter.” F.3d at 1333. The Board conclusion that assault oc- these lay found that statements “lack[ed] statute, However, curred. neither the sec- credibility confirmatory absent clinical rec 3.304(f)(5), regula- tion nor other VA ords to substantiate such recollections” of directly tion addresses role that symptoms. the veteran’s in-service Id. absence of service records reporting omitted). (quotation marks play disability assault should in a determination. We vacated and remanded. We held “legally that it would be untenable” for the As explained Fagan, we the VA Board “that to conclude absent confirmato- “pertinent” must consider all evidence ry evidence, lay evidence [record] lacks connection. See 1287- service 573 F.3d at credibility,” explained lack “the Pertinent is evidence not, itself, such records does in and of relevant, is, it must prove tend to lay render evidence not credible.” Id. disprove a material fact. generally however, recognized, 1336. We that as a 401; 1 Fed.R.Evid. McCormick on Evi matter, general contemporane- “the lack of (7th ed.2013). § dence at 994-1004 ous medical records a fact be that the Evidence that insufficiently probative, weigh against Board can consider and report, such as an inconclusive medical veteran’s evidence.” Id. “provides positive negative neither nor connection,” support for “is not appellants dispute service do not evidence, other, one pertinent way or the of contemporaneous absence service rec- regarding Fagan, connection.” ords of an event or condition will often be added); However, F.3d at pertinent. argue they Margaret Jack B. Weinstein & A. of contemporaneous absence service rec- Berger, unreported Weinstein’s Federal Evidence ords inservice as- (2d 2012) (“Weinstein’s pertinent, 401.07 ed. Fed saults is because it is not ”) (“[Evidence simply expect eral Evidence that] reasonable assaults prove does not tend to is of reported superior fact that would have been offi- consequence cers, ... is not unreported action[ ] records of as- *9 relevant.”) omitted). (emphases saults exist.2 Court, appellants argue contrary 2. To the extent the here that or Veterans to Bu- Board authority.” ed a DoD DoD Sexual to B Response Office Prevention & Assault that, dispute The VA does not (“SAPRO”), Department Annu- Defense of cases, incidents are great majority of such Report al on Sexual Assault in the Mili- authorities, military reported to (2013) (“2012 2012, at 18 tary: Fiscal Year do not exist. The therefore such records Report”). SAPRO DoD estimated that 3.304(f)(5) history of re regulatory section 2010, reports by victims accounted [i]n part to address veals that it was enacted percent about 14 of the sexual as- incidents of in-ser “[m]any the fact that estimated have occurred.... saults to officially are not re personal vice assault majority of sexual assaults ported.” Post-Traumatic Stress Dis year members each remain un- Service Assault, Claims Based on Personal order reported. (Oct. 2000) 61,132, 61,132 Fed.Reg. rule). SAPRO, especially Department true of DoD An- (proposed This of Defense Depart Report Assault in the assaults. The nual on Sexual in-service sexual (“DoD”), Military: is re Fiscal Year at ment of Defense which (“2010 ”).3 Congress Report to SAPRO And quired “[i]n statute to accounted for annually reports number of sexual as DoD authorities “[t]he [involving] percent of the Armed about 7 sexual [inservice] saults members reported military that were assaults estimated to have occurred that Force[s] 22; officials,” year.” Report, supra, Reagan see Ronald W. Nаtional SAPRO (stating “[esti- Act for Fiscal see also id. at 98 that the Defense Authorization Year 108-375, 577(f), [g]o- § [a]ssaults No. 118 mated [n]umber [s]exual Pub.L. (2004), [u]nreported to ing has estimated that DoD” in Stat. 93%). The significant majority of in-service sexual DoD estimates that between unreported. percent are 2006 and fewer than 15 assaults percent military reported that about 11 sexual assault victims estimate[d] “[DoD] authority. [involving sexual assaults Service the assault to a year report- Report, supra, at 53.4 that occur each are SAPRO members] chanan, touching” body parts requiring a record of the certain "with in- erred abuse, humiliate, degrade any per- state- or assault conoborate tent ments, any they imposed we gratify do not think son or arouse sexual desire of 920(t)(2) requirement. person"), § at 10 U.S.C. codified occurring 3. For incidents sexual assault Recognizing and reluc- disincentives to the after the 2007 revisions Uniform Code (“UCMJ”) adopted report, Military prior tance DoD Justice revisions, policy allowing make servicemembers to 2012 UCMJ "sexual assault” assault, report of a sexual "restricted” rape, aggravated sexual include[s] confidentially access "allows victims medi- sodomy, aggravated sexual nonconsensual contact, advocacy contact, cal care and services without initiat- wrongful abusive sexual investigation ing contact, an official command noti- attempts to sexual commit 17; Report, supra, fication.” 2012 SAPRO these offenses. (describing 64; app. see also id. B at Report, supra, at 2010 SAPRO repоrting option). confiden- 120(m) (2007) restricted These (defining "wrongful UCMJ art. reports apparently are not in the tial included legal justification contact” as "without sexual figures authorization, records. The DoD engaging] service member’s in sexual or lawful reports in the cited text person another that oth- contact with without years restrict- in the 2006-2012 include both person’s permission”), at 10 U.S.C. er codified Thus, 920(m) 120(t)(2) (2007) (2007); reports. it seems UCMJ art. ed and unrestricted probable percentage reports (defining “intentional "sexual contact” as *10 long recognized VA has the un- sexual during previous year contact5 of inservice sexual assaults derreporting “eite[d] fear of retaliation reprisals ... problem early for claimants. As as a reason not reporting.” for See 2010 manual VA claims Report, supra, SAPRO at 95.6 Of those state[d], with respect to claims based who did report, make a “most female vic upon a “The personal assault: surveyed tims experiencing indicate[d] record be devoid of be- (either some kind of retaliation profession many assault, personal cause victims of social) al or or administrative action sexual and especially domestic against them report associated with their violence, do not file reports official ei- ing 41; the sexual assault.” Id. at see also military ther with or civilian authori- DoD, Year Calendar Report: Sexual ties.” Involving Members the Armed Offenses West, (1998) (2005) (“2004 YR 11 Vet.App. ”) (“A Forces 5 DoD Report Adjudication (quoting VA Procedure Man punishment victim’s fear of miscon [for (Feb. 20,1996)). ual M21-1 duсt at the occurring same time as the significant assault] is a reporting barrier to Servicemen servicewomen who ex- assault.”). sexual Many victims also fear perience inservice sexual assaults face stigma “the associated with sexual assault “unique” report. disincentives to See DoD reporting,” may “mistakenly assume Care for Victims of Sexual Assault Task that being victim Force, of a sexual assault Report Care Victims Sex- for (2004) (“2004 appear will make them weak incapable ual Assault Task Force ”) of performing their Report (“Finding 12: are mission.” SA There barriers 20; Report, supra, PRO at reporting incidents of see Gov’t sexual assault. Office, GAO-08-1013T, Accountability Some are consistent with those the civil- Mil itary ian community while unique Preliminary others are in a Personnel: Observa setting.”). tions military findings DoD on DoD’s and the Coast Guard’s 2010 indicate that half Sexual more than of the Assault Prevention Response experienced, Programs female service members who (finding that “[c]om- report, but did not an incident of monly unwanted cited reasons reporting] [for not materials, appear According a service member’s records VAclinical is even lower. sexual [the victimization that mili- occurs tary] setting often means that victims are part 5. DoD its bases estimates in on the (or relying perpetrators on their associates Workplace and Survey Gender Relations perpetrator) provide for basic ("WGRA”), Duty Active Members conducted including psychological needs medical and every years. generally to four twо De- care.... Center, Manpower Report fense Data DMDC organizational high- Because is so cohesion 2010-025, No. Report 2010 WGRA: Overview environment, ly valued within the (2011). Assault Sexual WGRA uses the divulging any negative about a information term "unwanted sexual contact” acts cor- fellow soldier considered taboo. Accord- iv; responding to sexual see id. at ingly, many victims are reluctant Report, supra, also 2010 SAPRO at 92 n. sexual trauma.... distinguishes these acts from "sexual Stafford, harassment," Amy Military Street & Jane Sexual comprises “crude/offen- behavior, attention, Caring Trauma: Eve Issues Veterans in sive unwanted sexual al., Guide, coercion,” Iraq B. Manpower Carlson et War Clinician see Defense Data Center, 2010-023, (2d ed.2004), Report http:// DMDC available No. Academy Survey www.ptsd.va.gov/professional/manuals/ Service Gender Relations manual-pdl/iwcg/iraq_clinician_guide_v2.pdf. *11 1314 DoD) (1) (93% the and unreported 2006 we visited included: installations
the (2) (86% DoD)).7 done; nothing unreported would be to the Mil- belief that 2010 ostracism, harassment, or ridicule academy surveys during period itary fear of (3) their the belief that peers; and significantly rapes more also indicate incident”). peers about gossip than reported occurred were authori- a example, survey ties. For 2006 of U.S. sum, disincentives to numerous due (“USAFA”) Academy Air cadets Force past years, 6 reporting, “[o]ver found that per- than 15 that fewer estimates [DoD] victims re- military sexual assault cent of at [reporting the 60 least [o]f Women military authori- matter to ported] contact], one еvent of unwanted sexual at 53. ty.” Report, supra, 2012 SAPRO reported completed 26 sex or other sex acts, reported attempted 29 sex or other no reason to believe is also There acts, reported sex and 49 sexual touch- reported are most assaults severe ing. First, frequency. gov- greater with is the suggested ernment has not (5%) Only ... 3 reported Women [the Second, is no reason to be- there case. affecting to an au- incident them most] usually deter lieve that the factors thority organization. stigma or fear reporting, fear USAFA, Report on Sexual Harassment less- reprisal by perpetrator, are Program Academy and Violence: USAFA rape where a is com- ened those cases (2006). survey A 2003 simi- Year 2006 Third, consistently DoD pleted. has larly that of 26 cadets who found female underreporting rape stated that reported experiencing single incident of generally Of- significant problem. See which involved or at- sexual assault DoD, Inspector of the General fice tempted rape, reported six had the assault on the Sexual Report Interim USAFA authorities, the In- Office of (2003) inci- Survey (discussing Assault DoD, at 17- spector supra, General rape); reporting of in-service dence further noted that three of these also, DoD, Re- DoD Annual see reported suffering reprisal by six cadets port Military Services Sexual Assault peers or by military their authorities. Id. Year at Calendar argue given perva- Appellants Fourth, figures pre- the DoD from the nonreporting sive in-service sexual аs- period, when “sexual assault” saults, (as the Board Veterans Court act- narrowly rape, noneon-
defined more
contrary
and section
assault,
ed
statute
at-
sodomy,
sensual
indecent
3.304(f)(5)
evidentiary
offenses),
by “aceordfing]
sta-
tempts to commit those
indicate
record]
tus to the absence of
evi-
majority
[service
were
the vast
offenses
reporting
assaults. See
reported.
Report,
dence”
See 2010 SAPRO
20;
AY
21.8
estimates for AZ Br.
Br.
supra,
(comparing
person,”
upon person
prior
7.
committed
other than
"For incidents that occurred
spouse,
“with the intent to
defendant’s
changes made to the UCMJ on October
gratify
desires of the ac-
the lust
rape, noncon-
sexual assault included
(2005) (defining
cused.” See UCMJ art. 128
sodomy,
at-
sensual
indecent
assault),
(2005);
at 10 U.S.C.
64;
codified
tempts to commit
acts.” Id. at
these
Manual
Courts-Martial
United
(reflecting
Report, supra,
also 2004 DoD
(2005 ed.)
¶
States,
at IV-98
-99
definition).
the same
"Indecent assault”
“attempt[] or
unlawful force
offer[]
Appellants
dispute that where
vet-
do not
bodily
do
or violence to
harm
another
reported a sexual assault
eran claims to have
c
States,
Hornsby
made.
United
10 Wall.
224, 241,
77 U.S.
L.Ed.
law,
majority
At
courts
common
added).
logical
The rule is
be-
supported
held that where circumstances
*12
comprehensive
cause where a
record of
entry
“an
the conclusion that
^vould natu-
regularly kept,
events is
in an
as
archive of
made if a
had
rally have been
transaction
grants,
land
of any
“[t]he absence
record
occurred,”
evidence
the ab-
showing
then
remarkable,
evidence is
if
title
genu-
entry
ordinarily
sence of an
“should
be
Teschmaker,
ine.” United States v.
63
equivalent
to an assertion that no such
392, 405,
392,
22
U.S.
How.
pose.” Henry Wigmore, 5 Evidence John Following approach, this general 1531, § Trials at Common Lato 463 applying lower federal courts common law (James (“5 rev., 1974) Wig- H. Chadbourn evidentiary principles generally have held ”) added); (emphasis more on Evidence absence of a of an “[t]he record event cases).9 (collecting see also id. n.2 which ordinarily gives would be recorded long
This rule has been followed legitimate negative rise to a inference that Supreme example, Court. For the event did not occur.” See United Chesapeake & Delaware Canal Co. v. Robinson, 110, (2d States v. 544 F.2d 114 States, Supreme United ex Court Cir.1976) (emphasis added); see also Unit plained that evidence of the absence of 889, Georgia, ed v. De F.2d States 420 893 payment entry Treasury Department from (9th Cir.1969) (“[I]f a record business de records was as of non admissible evidence signed note every par transaction aof payment, because ticular kind contains no notation such a kept presumptively
[s]uch books so con- dates, specified transaction between no tained a all payments record made such transaction between occurred those and the entry pay- absence dates.”) (emphasis added); v. Keith United ment, naturally where it have would (5th Cir.1957) States, 355, 250 F.2d 356 made, it had been was agent’s testimony found that an (holding if “he nonpayment proper evidence of for the police department, checked with the jury. consideration of the office, utilities, public chamber sheriffs 129, commerce, telephone 250 U.S. 39 L.Ed. S.Ct. directo business added). Similarly, (emphases ries talked to local residents” person evidence of absence of all traces of found record of a was “[t]he no admissible grants, fictitious); proof person [land] where evidence would usual- as existed,” ly found, States, be v. United 48 F.2d is admissible Nichols if (5th Cir.1931) (similar).10 purported grant show a never authorities, found, entry"); Wigmore but no no such also 5 contain Evidence, report may pertinent supra, (criticizing the absence of the be at 463 rule). minority the evaluation his or her claim. also, minority appear 9. A of courts held ex Funk See Commonwealth rel. Clark, entry Ky. evidence of absence of an from 225 S.W.2d (1949) (“The regularly kept entry public records was absence of an in a inadmissible. States, (9th appear Shreve v. United record that in it F.2d would in the [school] Cir.1935) (collecting generally accepted "cases which hold usual course be place obligation nonexistence of debt or can- that an take event did not done.”) by proof something not be established that the books was not common-law rule has been codified have refused to courts Correspondingly, a record of the absence of admit evidence Rule of the Rules of Evi Federal occur, where an event did to show that dence, “synthesis” of represents expect the event it was not reasonable principles. See Fed.R.Evid. common law example, For recorded. to have been advisory committee’s note States, the Ninth Circuit Shreve United mandatory rules are not in VA these While that, assuming evidence held even disability hearings, they are further evi a company’s entry absence of approach, common law dence admissi- generally be account books agree with the Court we Veterans *13 occurred, had not a transaction ble show guidance. v. they offer useful See Gambill not question in “did books account Shinseki, (Fed.Cir. 1307, F.3d 1330 576 [missing] transaction was show that 2009) (Moore, J., concurring) (recognizing fictitious,” it had not been established as has Court looked Veterans record of they “contained an accurate “ ‘guiding Federal Rules as factors to be corporation, and all the business evaluating in proba used the Board of that under method particularly ” opinion of medical evidence’ tive value adopted by corporation bookkeeping Peake, 22 v. (quoting Nieves-Rodriguez the books would disclose existence of 295, (2008))); Vet.App. see 302 also Steven 2, outstanding 77 F.2d all indebtedness.” Week, 93, v. 688 F.2d 98- son Linens Cir.1935) omitted) (em- (9th (citation of 6-7 (D.C.Cir.1982) Benefits (approving 99 added). Similarly, in v. Bowman phases analogy Review Board’s reliance Kaufman, the Second Circuit held principle Rule 803 “on the that the absence prove police were inadmissible to reported a brake entry proba that no an in a business record is witnesses of failure, not indi- the records did because in of the event tive the nonoccurrence police cate that officer would question”). asked or recorded statements about 803(7) Rule “[e]vi- allows admission of accident; thus, the cause of the
regarding in a dence that a matter is not included although “g[ave] suggestion no the records in regularly activity record” a conducted told of police [the ever officer] not prove order “to the matter did failure, anything there brake neither [wa]s exist,” “a long occur or so as record was this hav- in inconsistent with [the records] regularly kept for matter of that kind” (2d 582, ing 387 F.2d 587-88 happened.” are no indi- and there “circumstances Cir.1967); (citing 5 see also at 587 n. 5 id. 1531). Evidence, cating] Fed. Wigmore supra, a lack trustworthiness.” added); refusing Optometry, (collecting cases to admit the ab- v. Ark. State Bd. Duren 578, records, 565, (1947) holding inapplica- 211 201 sence of them Ark. S.W.2d 579 regularly (admitting testimony appellant’s ble where business records were Wise, appear kept triplicate); men in v. 115 Ga. name on "a roster of all did Griffin 610, 1003, ("A (1902) book practice optometry [tax] Arkansas” S.E. licensed to in unlicensed); entry Eisminger entry proof contain an such an as that he was if Mitchell, 862, such existed is admissible ... to show that v. 181 Okla. P.2d existence.”) added); (1937) entry (affirming the trial admission court’s Knapp Day, Colo.App. 34 P. previous court records evidence that no where, (1893) judgment (affirming the trial court’s admis- was entered "because of the rule, having testimony postmaster, general sion of "the [the records] statute and should office, ... entry judgment charge [post] if of the records of [have] contained] such entered”); [registered] Sharp v. Ice the records did not show had been Pawhuska n Co., received”). 217 P. letters to have Okla. 803(7).11 803(10) (10th Cir.1999) similarly Rule F.3d R.Evid. (collecting cases). of evidence authorizes admission that “a public prove of a record to absence why There is no reason the well- exist, public
matter did not occur or if a principle established commonlaw concern regularly a record or kept office statement ing inadmissibility of unreliable record for matter of that kind.” Fed.R.Evid. evidence should not be followed here. In 803(10)(B). deed, the Veterans Court has held in simi lar circumstances that where a condition Notably purposes, for our both rules recorded, would not normally have been require admissibility that “a record “the Board not consider the absence regularly kept” type for the of event of [administrative record] as sub 803(7); See question. Fed.R.Evid. negative stantive evidence” that condi 803(10)(B). Fed.R.Evid. To establish that Shinseki, tion. Buczynski 24 Vet. (or prove record disprove) tends App. In Buczynski, the matter, is “crucial” “[d]emonstrat[e] Court Veterans ruled that the Board erred kept way records were basing its that a determination veteran’s *14 that the matter loould have been recorded skin condition exceptionally was “not re it Federal occurred.” Weinstein’s pugnant” on of the absence a medical rec Evidence, (emphasis §at supra, 803.09 documenting ord such a cоndition: added) 803(7)); (discussing Rule see [T]here [was medical not] reason Rich, States v. 580 F.2d United why expected a doctor would be to com- Cir.1978) (9th 803(7) (noting that Rules ment on the of repugnance veter- [the 803(10) grounded high' Therefore, on the “are condition. an’s] is not a situation where accuracy”).12 regard of the silence in probability records’] [the a can as proof condition be taken that a entry Evidence that an is from a missing did symptom. doctor not observe the deficient record is inadmissible under See, Robinson, Rules. e.g., added); 544 F.2d at 224 Id. see also id. 114-15; Rith, 803(7)). see also United States v. Federal (citing Rule of Evidence testimony 11. Some courts characterized record to mention a matter which would ordinarily satisfactory about a is the absence of record or statement as be mentioned evi- See, nonexistence,” “hearsay” thereby of "negative hearsay.” dence its Cashman, “set[ting] question at rest in Menard favor of v. 94 N.H. A.2d admissibility” of such evidence. See Fed. (holding testimony 160-61 803(7) advisory R.Evid. & committee's note patrons complained alleg- that no ever about added); (1972) (emphasis see also United edly correctly defective stairs excluded Rich, (9th States v. 580 F.2d testimony because "[i]f the excluded was not Cir.1978) 803(7) (stating that Rules inadmissible, hearsay, and therefore was at 803(10) admissibility “resolved the issue” of only most evidence inconclusive silence” by "treatfing] the absence of (citations omitted)); see also Edmund M. hearsay ... exception entries as an Morgan, Dangers Hearsay Application and the rule”). Hearsay Concept, 62 Harv. L.Rev. (1948) ("The decisions are in conflict as requirements adopted 12. Similar have been to whether the silence is to be as treated See, e.g., in state statutes. Cal. Evid.Code hearsay.”). (2013) (admitting § 1272 evidence of the ab- While a "probably the absence of record is prove of a business record to sence nonoc- acts, hearsay general not defined in” the hear- currence of an event if “all such condi- rule, tions, recorded, say its inclusion under the rubric or events” were and "the hearsay exceptions regard- trustworthy establishes that a absence of a record ... is indi- status, "[fjailure hearsay occur”). less its of a that the act or did not cation event in Shinseki, Like inconclusive medical the Veter Similarly, Horn of an unre- Fagan, the absence of the Board erred ans held that Court ambiguous records docu too ported of service sexual relying on lack probative because Because the condition value. menting medical foundation, or au- evidentiary reported military not no assaults were “there is thorities, person ex- suppose” no reasonable could logical even reason during documenting recorded records the assaults pect have been condition 231, exist, Vet.App. or infer that the absence treatment. veteran’s re not prove Court records tends assaults did 239 n. 7 Veterans Thus, Buczynski “pro- records the rule stated occur.' absence of cently applied in- negative nor positive support PTSD claim based vides neither сonnection,” assault. See for service id. service sexual Nesbit-Netcliff Shinseki, 11-0950, evidence, way WL No. is “not one or the pertinent 2012) other,” determination, Aug. (nonprece- to that see id. (Vet.App. dential). held The Veterans Court sum, evidentiary principles pre- básic “are silent where service medical records treating clude the absence of record of having being [sic] appellant as to the unreported an sexual assault as evidence “do contradict raped,” [the the records not the nonoccurrence of the assault. raped, that she was veteran’s] statement” Therefore, appellants agree we that a surprising “[i]t because like that where the fact regarding victim silent would be assaults, is re- most in-service sexual (em raped.” Id. at *4 had been she ported, the absence re (reversing phasis original) *15 documenting the is not manding). that the assault did not pertinent evidence our are consistent with
These cases Fagan, at 1289-90.13 occur. See 573 F.3d the holding Fagan, which addressed II lacking pro-
Board’s treatment of evidence (an re- bative value inconclusive medical question The second is whether the inability a to port recounting doctor’s report failure to the veterans’ admitted other). way one reach a conclusion or the to in the chain of superiors sexual assaults Fagan, at held that 573 F.3d 1289-90. We pertinent is itself evidence that command such evidence In both AZ the assaults did not occur. noted, AY, have the Board nor
provides positive nеgative neither to, the failure of the veterans given weight for There- support service connection. report rapes military to authorities. to evidence, fore, it is one pertinent other, regarding con- way or of criminal It is true that in the context nection. trials, historically presumed rape courts added) (citation “it so to be almost natural as [wa]s Id. at 1289 omitted). a “make rape inevitable” that victim would bearing suggest of the cases 13. We do that service records outcome VA, cannot otherwise be relied on at But if an before us.” Dissent 1325-26. disciplinary prob- example, to AZ a show had documentary a record is irrele- absence of prior estab- lem or to vant, VA not have relied on that should attempted that AY was treated for lish never reaching absence in its decision. military hospital. at a suicide suggests dissent absence of re- “the port possibly [AZ AY's] records cannot anyone, complaint rape] immediate not where [about the victim failed to her mother or other confidential friend.” an make official supervisor, to a an 265, People, 41 N.Y. employer, police. See Baccio v. or the 4 Wigmore (1869); Henry Wigmore, Evidence, 4 John supra, § see also 1135 at (empha Indeed, Evidence in Trials at Common Law sis in original). gen cases (James 1185, at & nn. 1-2 H. erally 298-301 whether asked the victim had re 1972) (“4 rev., Chadbourn Wigmore ported on Ev- rape family to her or friends. idence”) Hill, See, (collecting cases); Balles, v. State State 47 N.J. (1990) (1966) 121 N.J. 578 A.2d A.2d (admitting “proof (discussing history of this presump- violatеd victim complained within reason tion). Therefore, thought was that a able time to someone she ordinarily to promptly victim’s failure turn rape sympathy, protection and ad anyone “suspicious inconsistency”: specifically, mother); was her Thomas vice”— State, 144 Ga. 87 S.E. already It has been seen that fact of (admitting testimony that the victim speak “made failure to when it would have complaint to those to whom complaint natural do so is effect an such an occurrence would naturally be inconsistent statement self-contra- Baccio, specifically, her parents); diction .... made”— 41 N.Y. at (stating that a victim gener the accused [Where] [that denies ally “will complaint make immediate [of occurred], rape its very commission thus the rape] to her mother or other confiden issue, coming into the circumstance that friend”); tial Wolf, v. De State 8 Conn. the alleged rape the time of the wom- (1830) (“If testifies, a female that [she nothing anybody said about it to con- is, raped], once, has been an enquiry stitutes effect a self-contradiction of suggested, why it was not communicated entirely natural, It above sort. friends.”). to her words, female In other becoming after the victim of an assault law, under the common victim will, against her that she should have expected complain very catego not, spoken That out. she did that she ries specified of individuals in section went if nothing happened, about as *16 3.304(f)(5) potential support as sources of was in an that nothing effect assertion ing evidence—the same kinds of individu violent had been done. als who supporting submitted statements woman, Thus the at the failure of here. are holding We unaware of cases time of an rape, to make that report the failure to rape complaint in could be offered to or police workplace supervisor a (as concede) all as a virtual self-contra- tends to did not rape show occur. discrediting diction her present testimo- ny. Second, are skeptical modern courts Evidence, Wigmore § 4 supra, on 1135 at report a prompt pro- the lack of has (citation (emphases 298 the original) bative victim rape value because a will also, Baccio, omitted); see 41 N.Y. at report Rather, “naturalfly]” the assault. they recognize that overwhelming “[t]he why body studies, data,
There are several empirical reasons this com- of current pertinence mon law theory inapposite is and other it information establishes that is First, here. the failure report rape inherently to ‘natural’ for the victim to disclose, only was considered relevant where or confide someone to immedi- ” any complaint ately offense, victim failed “to make following to commission of the 1320 matter, Third, a sexually general courts assaulted.” he or she 746, and civil con held in both criminal Brown, 35 have 8 Cal.4th People v. that, rule texts similar on omissions (1994); 407, 949, 883 P.2d 956
Cal.Rptr.2d records, where there is unreliable Licata, also, v. e.g., Commonwealth or other suspect report reason to that no (1992) 672, 412 674 Mass. 591 N.E.2d made, have testimo statement would been (“[L]ack way in no complaint fresh of a ny report about the failure to make rape.”). lack of It necessarily implies ... As the statement is inadmissible. Su gener- assault is is known that sexual now preme recognized, Court has most “[i]n See, e.g., S.Rep. ally No. underreported. ambiguous so circumstances silence is (“Consider 102-197, the typi- at 44 probative it is of little force.” United even cal Few rape victim.... Hale, 422 95 States v. U.S. S.Ct. crime.”); (stating rape is id. at 38 99 45 L.Ed.2d When evaluat underreported “the crimes among most the failure to make a state ing whether America”). recognize many Courts fact, probative be of material ment the crime are afraid be- victims is, test would underlying “the humiliation, or they stigma, cause fear person to natural make asser To testifying about attack.14 ordeal question?” Henry Wig- John tion in 3A criminal de- permit extent that courts more, Evidence in at Law Trials Common prosecution wit- fendants cross-examine (James rev., H. Chadbourn 1042 1058 victims, nesses, rape omis- including about 1970) added). Thus, arguably that are inconsistent with sions lack commonly thought pro- silence case, practice rests prosecution’s question bative value whether unique inapplicable to a consideration person expressed agreement has tacit overriding civil proceeding: benefits disagreement contemporaneous right safeguard defendant’s to a need Failure to statements others.... con- right fair trial Sixth Amendment an ... test assertion considered evi- Kentucky, confrontation. See Olden if it acquiescence only dence of 227, 230-32, U.S. 109 S.Ct. have been natural under the circum- (1988) (holding the de- L.Ed.2d object assertion stances in a trial had a fendant constitutional- question. ly right protected to cross-examine the trial court ex- complainant on issue (cita- Hale, U.S. S.Ct. prejudicial). cluded as too the context omitted); tion see also Jenkins proceed- Anderson, of a civil benefits 231, 239, non-adversarial U.S. S.Ct. (1980) (“Common ing, proceeding, a VA such as benefits law L.Ed.2d *17 defendant, traditionally there is no criminal and these has witnesses to be allowed impeached by previous are their failure to inapposite. constitutional concerns who, counseling day example, Morgan, in Commonwealth v. those after for a or two For 14. Pennsylvania Supreme pointed friends, Court of invoke the husband and report: rape out that not all victims law.... The of all three classes members are [the victim] Women who violated as respect. are entitled to may claims she was be divided into three 330, 607, (1948); Pa. 58 A.2d 334 see also (1) furiously those on classes: who turn (stating women are "[m]ost id. at any weapon their attacker with available or complaint amake cases” reluctant to hands; (2) those even with their bare who "notoriety” they and the ordeal because fear having because a natural dread testifying). silent; (3) indignity publicized, remain explanation in which that other is equally state a fact in circumstances consistent asserted”) with silence.... naturally would have been fact added). Evidence, 4 Wigmоre 1071, supra, 102; also, e.g., Strong, v. Vail 10 Vt. Thus, an where individual would (1838) (“The 457, 463 mere silence of the statement, expected not be to make party evidence, way creates no or one generally testimony courts do not admit are, indeed, other. cases, There where the Similarly, that no statement was made.15 silence party creates a presumption to allow a generally courts refuse witness him; inference pre but fact, he told a testify to was never sumption derives all its from force expect where one would not witness to circumstances, under which the statement generally have informed.16 It been is rec ”). disputes, made ... And in contract ognized that evidence that other customers failed to to imply assent third [s]ilence [a complain usually inadmissible show statement], party’s certain condi- defective, goods were not because general only. principle tions rel- there are numerous reasons customers evancy us might tells the inference of not complain receiving about defec may safely only goods.17 assent when tive be made no occur, example, Supreme Court of For Geor- the abuse did not “[t]here because was gia Sherling nothing obligatory upon held in v. Continental Trust Co. stepsister] [the to dis- by allowing that the trial court erred testimo- cuss the fact the trouble between herself ny witness, that a decedent stepmother and her with the or with presence.” persons other his anything Treschman v. never about a [the witness] said Treschman, 206, 961, allegedly plain- Ind.App. contract made with the 61 N.E. [he (1901). party]. tiff a third accepting This evidence have been Courts more should ... on the proposition excluded family that because close ground that it was irrelevant and immateri- members be told of a loved one’s ill- al, requir- and no circumstances were shown injury, they ness or the fact that were not told any ing [the decedent] to make statement injury about an illness or tends to show that it about the contract or to admit See, e.g., Fidelity never occurred. Serv. Ins. referred deny making the same. Jones, 195, 20, Co. v. Ala. 191 So.2d 29- 672, (1932) (em- 175 Ga. 165 S.E. (1966) (allowing testimony de- added) (headnote). phasis inAnd Lake Drain- family ceased never told members he was age Spencer, v. Commissioners where the fact accident); prior Fogg unwell question whether or not summons Co., Or. Short Line R.R. 78 Utah 1 P.2d mother, on the been served defendants’ (1931) (allowing testimony 956-57 from Supreme Court of North Carolina held plaintiff’s complain that he wife did not admitting that the trial court erred accident). prior injury from testimony they defendants' had never say heard their mother she was served with 17.See, City Van Lill S.J. Co. Frederick tending prove that summons as no service Co., Packing Md. 141 A. made, because the failure mother’s complaints (holding the absence of "prove[d] nothing, mention the summons because, purchaser from another inadmissible proved anything, if it would tend to show that given many possible reasons for not com she had been served.” 174 N.C. 93 S.E. goods plaining, the inference that the were acceptable purchaser’s the later failure complain was "too remote to warrant its example, stepdaughter 16. For in a suit *18 Siegel, recognition judicial proof”); King as & alleging stepmother, abuse her the Court Baldwin, 336, Penny Co. v. & 176 Ark. 2 Appeals testimony by of of Indiana held that 1082, (1928) (observing that S.W.2d oth step- the son defendant's to the effect his may alleged purchasers "damaged er well have been sister never mentioned the abuse in presence complaining”). his was to show that In Vermont Food without[] inadmissible (1988), reprinted in U.S.C.C.A.N. unique to Fourth, there a deterrent is Here, Secretary, rely- to mili- sexual assaults 5795-96. the reporting inservice usually present evidence, is not tary ing empirical expressly authorities that has repri- is fear of the report in criminal cases: the failure to to recognized that raped by who is A servicemember duty sals. of typical is active victims authorities servicemember, reports 61,- another Fed.Reg. at of assault. See command, is mak- the rape within chain Secretary many expects 132. The ing report person professionally the to reported have to will not been assaults (and personally) associated with perhaps authorities, the for reasons unrelated to Thus, many servieemembers rapist. the Penalizing of the claim. assault merits to reporting the fear that act hardly com- victims for that failure would subject them to military authorities will “the impor- port system See, professional reprisals. personal systemic the appear- tance of fairness and 19-21, Report, supra, 2010 SAPRO carr[y] great weight.” of fairness ance the (discussing reprisals and fear at 1363. Hodge, 155 F.3d Inspector Gen- reprisals); Office reasons, For all these we conclude that (similar); DoD, at 17-20 supra, eral of the the not treat claimant’s failure VA Office, Accountability supra, at 14 Gov’t mili- report sexual assault to (similar). This creates incentives not fear pertinent evidence that tary authorities military rapes authorities that the did not occur. sexual assault typical criminal case in do not exist context. civilian Ill Finally, sys veteran’s benefits cases, ap- In each these Board for the claim tem is on “solicitude based ser- pears to treated the absence of ant.” Ass’n Radiation v. Nat’l Walters as- documenting records vice Survivors, 305, 311, 105 S.Ct. U.S. saults, and the absence of (1985); 87 L.Ed.2d authorities, as evidence that West, (Fed. Hodge 155 F.3d AZ, did occur. In assaults not Veter- Cir.1998) (“This Supreme court expressly acknowledged that the ans Court long recognized that the Court both have given the Board had absence statutes character of veterans’ benefits documenting records uniquely pro-claimant.”). strongly evidentiary that it weight, held was against the argues This solicitude use so, Board per- to do because “the error when it has against a claimant weigh the absence mitted corroborat- To extent pertinence. doubtful ing documents evidentiary Congress require has relaxed AZ, 10-2393, slip at 5 context, op. No. in the it did evidence.” ments VA so 2011) added). benefit, (Vet.App. Nov. penalize, gen claimants. 100-963, AY, heavily In relied ab- H.R.Rep. RO erally No. Co., Industries, concerning plaints appellant’s product the Sec- Inc. v. Ralston Purina prop- Many complaints hаd ond Circuit held that the trial court made. fact been erly questions prohibited locally, about customer might have made but resolved words, company’s office complaints to a home be- absence of for- there. other cause complaints might at the home office mal of the situation in the not be indicative questions probative of of these none point appellant trying field. the real (2d Cir.1975). get jury, namely, no F.2d before the com- *19 assault, person but of service records the when a claims assault years sence sexual incident, alleged Board the of ser- after the the the mentioned absence absence of a briefly, contemporaneous report officials only records and the Veterans able to vice alleged act the perpetrator is clearly decide such irrel- did whether Court assessing credibility evant to cases, the of the In proper.18 both the rebanee According majority, claim. failure Court appeared Board Veterans a sexual report assault is not relevant to treat report the veteran’s failure to the or not authorities, place. whether took military assault to as evidence majority The is AZ wrong. and AY are that the assault not occur. did claimants, sympathetic jurisdiction our We remand to the Veterans Court prevents reviewing us from fact findings or case, In each proceedings. further applications even to fact. law And as Court should consider to what Veterans such, majority was forced to adopt this improperly extent the Board relied new, categorical rule of law that is at odds documenting absence service courts, with other consistently which have assaults, or vet- on the found that non-reporting sexual assault report contemporaneously erans’ failure to I is relevant. dissent. respectfully sexual assaults to au- legal applicable Under the standard thorities, pertinent evidence that cases, a veterans’ benefits veteran’s medi- alleged assaults did not occur. Because cal pertinent records and “all an approach unsupported by such lay medical and evidence” must be consid- regulations, applicable statute and contra- 3.303(a). short, § ered. C.F.R. evidence, empirical dicted and con- VA all must consider relevant evidence. trary law, general the Veter- any Evidence is relevant if “it has tenden- ans Court should consider whether remand cy to make a fact probable more less required to the Board is so that cases than it would be without evidence.” re-adjudicated light can be 401(a) added); Fed.R.Evid. correct standard. R; majority also id. 402. The ap- never VACATED AND REMANDED plies accepted universaby standard of majority accepts The that the relevance.. Costs existence of a to officials relevant Costs to appellants. admissible; tendency it has a to make rape probable the fact more than it MOORE, Judge, Circuit dissenting. without Inexplica- would be the evidence. majority general, categori- The adoрts bly, it that the denies converse: failure that, rule of mbitary, cal law least in the rape any tendency has to make cases, implied We note that in both the VA to witness an in-service sexual includ- lay probative ing clergy family. lacked value statements and the veteran's See 38 3.304(f)(5). they by eyewitnesses made adjudi- because were VA's own C.F.R. As the AZ, acknowledges, sexual assaults. No. cation manual sexual assaults slip op. (Bd.Vet.App. unlikely parties. Jan. are to be third witnessed 2010); (Mar.2006 Rating Adjudicative AY J.A. Deci- See VA Manual Re- Procedures sion). However, M21-1MR, iv, Ill, Subpart do not we think the Veter- write Pt. Ch. H(32)(a) (“When any Court interpretation determining ans relied such Sec. 3.304(f)(5), clearly section be occurrence of stressors to establish service PTSD, regulation expressly following: incorrect. author- connection for consider the alone, experienced izes the submission ... the trauma be statements assault....”). unlikely to have opportunity individuals as in cases of *20 1324 majority writes into reach the result the rape probable the less of
the occurrence
today.
to law
the failure
be without
than it would
con
credulity to
simply
It
defies
report.
by
justifies its
rule
majority
The
blanket
to
a
a
failure
veteran’s
clude
law” of evi-
cobbling together a “common
zero probative
assault has
value
sexual
hodge-podge
pre-
a
of sources
dence from
relevancy
low
threshold
therefore fails
The
senting
circumstances.
unrelated
Principi,
Forshey v.
every
in
case. See
majority
adop-
by the
address
cases cited
(en
(Fed.Cir.2002)
1335, 1358
284 F.3d
others,
of
of the statements
tion
silence
banc) (“[T]he
encom
of evidence
definition
evidence,
hearsay
and even
exclusion of
evidence,’
to
which tends
passes ‘negative
complaints in
lack
customer
breach
of
of an
the existence
disprove
none
these
contract cases. But
of
cases
of
fact-”).
that the failure to
support
proposition
not
complain
rape
to the authorities is
on a
majority’s
hinges
decision
The
of whether
question
relevant
to
only 15% of
as-
study finding that
sexual
rape occurred.
military
reported be-
saults in the
were
to
do not need to resort
cases
2006
2012. There are several We
tween
First,
significance
if
because there ex-
questionable
even
problems with this reliance.
on-point
dealing
authorities
sexual
accurately
reporting
number
reflects
ist
make clear that
in
in the
assault. These authorities
rape
1970s
routinely
non-reporting
oc-
is
ad-
1980s,
allegedly
the fact of
when these incidents
See, e.g.,
v.
curred,
non-report- mitted into evidence.
State
reporting
the fact of
W.B.,
588, 17
N.J.
A.3d
the low
threshold:
205
ing still
relevance
meets
(2011)
jury
tendency
instruction
namely, non-reporting
(approving
has some
silence/delayed
“you may consider the
dis-
to
the fact that
occurred
make
may
along
closure
with all of
other evidence
It
be that
low
probable.
less
well
explana-
[complaining
in little
including
witness’s]
result
reporting
incidence
would
silence/delayed
disclosure
non-reporting,
tion
weight being given
his/hеr
af-
you
weight
decide how much
to
render that evidence irrele- when
doesn’t
Second,
[complaining
testimo-
majority
witness’s]
as the
acknowl-
ford
vant.
(1995)
ny”);
(“Prompt
Pa.C.S.A.
figure
its
to all sexual
edges,
applies
15%
be, however,
public authority
It
is not re-
reporting
assaults.
prosecution
of-
in a
sexual
particularly
quired
[of
rate for
severe
reporting
Provided, however,
nothing
That
fenses]:
assault of the sort
incidents
sexual
prohib-
shall
construed to
(rape)
higher.
is
in this section
be
appeals
issue
these
know,
introducing
from
evidence of
majority
not
and the
admits
it defendant
We do
re-
Maj.
complainant’s
promptly
failure to
Op.
it has no idea.
at 1313-14.
crime.”). Indeed, major
issue
larger problem
port
that none
admissibility
of law is the
majority
part
cited
were a
this area
studies
testimony
why
below,
explain
not
other
expert
the VA was
the record
do
im-
sexual assault
given
explain
their
victims of
opportunity
delay
suggests
reporting,
if we
crime or
port to the cases before us. Even
admissibility
non-reporting
it-
authority to
rules
create new
See,
question.
State v.
protect
job
self
victims of
Obeta,
(Minn.2011);
courts,
State
we
need
796 N.W.2d
Congress not the
(1987);
Hicks,
459,
solicitude majority’s way The real issue is with the non-reporting is admitted because dence of weighed that the YA the fact of non-re it is relevant. admissibility. I porting, not that fact’s majority that may agree well with the the to have jurisdictions appear most
While clearly by undue according pro VA erred rejected that a failure presumption value to the fact that AZ and AY bative report means contemporaneous make a report did not the assaults to the authorit occur, majority assault did not jurisdiction ies.1 But we have no to re authority denying the relevance cites no weighing of the evidence. view VA’s (and For admissibility) of that evidence. Shinseki, King v. 700 F.3d 1345- majority cites Common example, (Fed.Cir.2012); Gober, Madden v. Licata, which states that wealth v. 1477, 1481(Fed.Cir.1997); F.3d see also 38 complaint way in no neces “lack of a fresh 7292(d)(2). U.S.C. rape.” 412 Mass. sarily implies lack of (emphasis 591 N.E.2d majority’s additional rule added). say does not that the lack Licata report absence of a of sexual assault in the categor to the authorities is complaint of a by cannot veteran’s records be considered irrelevant, ically any and neither do of the completely inapposite VA majority. cited For other cases us. AZ and AY admittеd in appeals before Brown, People v. 8 Cal.4th example, they proceedings below that did not (1994), P.2d 949 Cal.Rptr.2d authori- report alleged assaults majority, directly contradicts cited long they until after had occurred. ties majority’s holding: “when the victim of did not “The Veteran has stated she make a alleged an sexual offense did not report sexual assault to civilian but instead disclosed the add- prompt complaint authorities.” AZ J.A. later, 9; ed); time evi AZ AY only incident some see Br. J.A. hearing at a (noting of the fact and circumstances sur that AY stated dence police delayed complaint report ... he did not the incident rounding “[s] occurred”). Because jury’s evaluation of the at the time be relevant to they positively not AZ and AY admitted that the offense did or did likelihood Id., rape, contemporaneous P.2d made no Cal.Rptr.2d occur.” Lane, of a in their records the absence at 958. Accord Commonwealth suddenly begin point in majority's opinion ... did not makes it I note that beginning with the appear in these cases time concurrent as if the VA's decisions assaults."); (noting recent stressors largely non-reporting. id. at 31 on the fact of rested VA, service); AY J.A. 22-23 simply see also unfair to the inaccu- unrelated This is in service (noting that AY’s demeanor while clearly VA considered other evi- rate. The See, ("[T]he being depressed); reports claim of contradicted her dence. AZ J.A. 28 (noting AY’s ac- relatively consistently at 23 inconsistencies in id. misconduct occurred service, incident). of the throughout period the Veteran's counts any hearsay, thus not need possibly bearing cannot on the evidence does exceptions of the cases before us. Further- to meet to the rule outcome more, slightest hearsay there is not the basis for become admissible. rape that are thinking reports appear made to the authorities do not Congress protect sees the When need majority’s the records. The discussion of victims of sexual it acts. For ex- reports the relevance of absence of Congress decided that ample, evidence of pure dicta. prior sexual assault victim’s sex- Even if these veterans’ records mat- *22 history categorically ual inadmissible to tered, majority’s conclusion that prove assault did not occur. Fed. unsup- absence of a is irrelevant is 412(a)(1). Congress R.Evid. also amended portable for similar reasons as the fact of the FREs to allow in criminal admission relevancy non-reporting: threshold is that a previ- cases defendant low, reports and the absence of clears it. ously committed sexual assault. Id. R. exactly The in these VA cases did what the 413(a). not, however, Congress did enact applicable gave statute commands—it “due stating a rule nonreport- evidence of consideration” to the service and medical ing categorically of sexual assault is inad- claiming records the veterans service- criminal, civil, missible—be it in or VA disability. connected U.S.C. settings. Today, majority usurps Con- 1154(a)(1) (2012); § see also 38 C.F.R. gress’s proclamation role with its broаd 3.303(a). § admissibility of certain evidence in the only regulations Not are the statute and system. VA clearly contrary majority’s holding, AY sympathetic AZ and are claimants. Nicholson, Buchanan v. we held woman, judge, And as and a human lack contemporaneous “the medical being, I am dubious about the weighing of may be a fact that the Board can findings the evidence and the fact weigh against lay consider and a veteran’s But applicable VA this case. stat- (Fed.Cir. evidence.” F.3d principles utes and basic of evidence law (“Nor 2006); see also id. at 1337 do we power help leave us without them. We weigh hold that the Board cannot the ab probative are not allowed to assess the contemporaneous sence of medical evi value of a veteran’s failure to record.”). dence evidence of sexual assault to the man- authorities and so, doing simply Buchanan restated may date to the VA what inferences it
well-established law—the VA consider draw from that failure. Nor do we have contemporaneous the lack of medical rec jurisdiction weigh the absence of a re- ords in the veteran’s file because port of sexual assault in the veteran’s rec- 3.303(a) grants it power to do so. jus- ords. Solicitude veterans does not ignore cannot binding precedent. We tify making rules we up go along. majority attempts justify its de- parture from governing statute and
regulations by arguing that the absence of
reporting ought in a veteran’s records
be ádmissible because it would not meet 803(7)
hearsay exceptions codified Rules 803(10) of the Federal Rules of Evi- dence. But veterans’ benefits cases allow In re CITY OF HOUSTON.