731 F.3d 1303 (Fed. Cir. 2013), 2012-7046, AZ v. Shinseki

Docket Nº:2012-7046, 2012-7048.
Citation:731 F.3d 1303
Opinion Judge:DYK, Circuit Judge.
Party Name:AZ, Claimant-Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee. AY, Claimant-Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.
Attorney:Zachary M. Stolz, Chisholm, Chisholm & Kilpatrick, of Providence, RI, 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, KS. Steven M. Mager, Trial Attorney, Commercial Lit...
Judge Panel:Before DYK, CLEVENGER, and MOORE, Circuit Judges. Opinion for the Court filed by Circuit Judge DYK. Dissenting opinion filed by Circuit Judge MOORE. MOORE, Circuit Judge, dissenting.
Case Date:September 30, 2013
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 1303

731 F.3d 1303 (Fed. Cir. 2013)

AZ, Claimant-Appellant,

v.

Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.

AY, Claimant-Appellant,

v.

Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.

Nos. 2012-7046, 2012-7048.

United States Court of Appeals, Federal Circuit.

September 30, 2013

Page 1304

[Copyrighted Material Omitted]

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         Zachary M. Stolz, Chisholm, Chisholm & Kilpatrick, of Providence, RI, 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, KS.

          Steven M. Mager, Trial Attorney, Commercial Litigation 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 Counsel. Of counsel on the brief were David J. Barrans, Deputy Assistant General Counsel, and Tracey P. Warren, Attorney, United States Department of Veterans Affairs, of Washington, DC.

          Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, KS, argued for claimant-appellant in appeal no.2012-7048. On the brief was Sean A. Ravin, of Washington, DC.

          Steven M. Mager, Trial Attorney, Commercial Litigation 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 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 Veterans 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

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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 unreported 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.

         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 problems including PTSD. She attributes her PTSD to sexual and physical abuse by the father of her child, a noncommissioned 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 connection 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 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 personnel file were review [sic] for verification of the assaults or at least some indication you were assaulted. 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.

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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 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.

Id. at 15. The Board stated that under the applicable regulations, " [s]ervice department records must support, 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 competent evidence of record corroborating the Veteran's allegation that she was sexually assaulted in service....

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....

... The Veteran has stated that she did not report sexual assault to military or civilian authorities. It is noted that a positive pregnancy test was reflected in the service treatment records; however, there is no notation that the pregnancy was a result of sexual abuse.

Id. at 15 (emphasis added).

         The Board acknowledged that the three lay statements 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 problem," 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 ... 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 assaults are documented, it is perplexing that the Board would use the lack of documentation of

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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...

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