AZ v. Shinseki — Absence of unreported sexual assault records is not pertinent evidence

The veteran sought service connection for PTSD based on military sexual trauma. VA denied the claim in part because service records did not document reports of the alleged assault.

The Federal Circuit rejected VA’s reliance on the absence of official reporting as negative evidence. The court explained that sexual assaults are frequently unreported and that silence in service records therefore lacks meaningful probative value regarding whether the assault actually occurred.

The court reviewed military and scientific studies documenting widespread underreporting of sexual assault and concluded that the Board errs when it treats the lack of official documentation as substantive evidence against the occurrence of MST.

AZ significantly strengthened evidentiary protections for MST claimants and reinforced the need for careful evaluation of lay evidence, behavioral changes, and alternative corroborating evidence in personal-assault PTSD claims.

• Absence of service-record documentation of MST is generally not probative evidence that the assault did not occur.
• VA may not treat failure to report sexual assault as substantive negative evidence.
• MST claims require careful consideration of lay evidence and alternative corroborating evidence.
• Behavioral changes and indirect evidence may support verification of MST stressors.
• The Board must provide adequate reasons and bases when evaluating MST evidence.

AZ recognizes the realities of MST underreporting and prevents VA from improperly using silence in service records to deny personal-assault PTSD claims.

AZ is one of the most important modern MST evidentiary cases and is frequently cited in challenges involving credibility findings and lack of contemporaneous reporting.

• Treating lack of MST reporting as negative evidence.
• Improper credibility determinations based on silence in records.
• Ignoring behavioral markers and indirect corroborating evidence.
• Inadequate reasons and bases in MST claims.

A veteran reports an in-service sexual assault decades later, but VA denies the claim because service records contain no report of assault. Under AZ, the lack of reporting alone generally cannot be treated as evidence that the assault never occurred.

Use AZ when:
• VA relies on absence of MST documentation.
• Challenging credibility determinations based on silence in records.
• Arguing proper treatment of behavioral-marker evidence.
• Contesting improper evidentiary standards in MST claims.

38 C.F.R. § 3.304(f)(5)