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A Federal Court of Appeals Weighs In On Whether the Failure to Report an Alleged Sexual Assault Can Be Used As Evidence That An Assault Never Took Place

In the event of claimed military sexual trauma (“MST”), the VA rater cannot treat the fact that the assaults were not recorded in either a veteran’s service personnel record or a veteran’s medical records as pertinent evidence against a veteran’s claim that a sexual assault occurred. In other words, a lack of official documentation does not equate to negative evidence.

Veteran, AZ, served from 1973 to 1974, and was pregnant when she was honorably discharged. In 2004, she was diagnosed with PTSD, which she stated was due to a senior non-commissioned officer (“NCO”) sexually assaulting her while in service, resulting in her pregnancy and the birth of her daughter. AZ filed a claim for service connection for PTSD and was denied due to the fact that there was no record of the sexual assault in her service records. AZ submitted lay statements from her siblings, whom all stated that she told them, at the time of her pregnancy, that she was sexually assaulted by her NCO and that she did not report him to any military authorities out of fear. She was denied again and she appealed to the Board of Veterans Appeals (“BVA”), which held that her service records must support and not contradict the veteran’s testimony. The BVA stated:

Here, the evidence of record does not corroborate the Veteran’s account . . . . [T]here is no documentation in the service records to indicate that the Veteran reported having been personally assaulted, or that she instigated proceedings against her alleged attacker. Moreover, the Veteran’s service treatment records contain no evidence that the Veteran sought treatment for the alleged sexual or physical assault itself. . . .

AZ appealed to the Court of Appeals for Veterans Claims and the Court affirmed that The BVA acted within its authority and that it was allowed to weigh the lack of documentation as evidence against the assault’s occurrence.

Veteran, AV, served from 1980 to 1983. Like AZ, she claimed to have been sexually assaulted while in service and did not report the incident out of fear. Also like AZ, Her service records contain no record of a report of sexual assault, treatment for sexual assault, or psychiatric problems. She was diagnosed with PTSD in 2002. She filed a claim for service connection for PTSD and was denied. Like AZ, AV filed statements from veterans who served with AV, all of which state that AV told them that she was sexually assaulted. None of the lay statements were from witnesses of the event. The VA stated:

Service connection has been denied since there is insufficient evidence to support that you were raped while in service. The statements you provided from your friends and family were insufficient to substantiate your claimed stressor, since none of them witnessed the incident, and only knew of the incident due to your statements alone. The service records failed to show that you had any difficulties while in service. Your records show that you had commendable military service.  There is no evidence that can substantiate that you were raped while in service. Therefore service connection for PTSD is denied . . . .

AV appealed to the BVA and was denied. She appealed to the Court of Appeals for Veterans Claims, which not only affirmed the BVA, but further held that AV’s stellar service records contradicts her claim that she was assaulted, suffered any trauma, and attempted suicide.

Both AZ and AV appealed to the Court of Appeals for the Federal Circuit, which disagreed with the prior rulings.

The Federal Circuit stated that “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.” The Federal Circuit also stated 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.” The Court remanded both cases back to the Court of Appeals for Veterans Claims.

AZ v. Shinseki, No. 12-7046 and AY v. Shinseki, No. 12-7048, __F.3d __ (Sept. 30, 2013)


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