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Full Opinion
Opinion for the Court filed by Circuit Judge DYK. Dissenting opinion filed by Circuit Judge MOORE.
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
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 noncom-missioned 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 develop
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, “[sjervice 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.... [TJhere 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 “reflected] 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 “[rjecords 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*1308 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 Veterans Court affirmed. AZ v. Shinseki, No. 10-2393 (Vet.App. Nov. 28, 2011). It found that the Board did not err by weighing “these lay statements against the other evidence of record and f[i]nd[ing] them less probative,” because “the Board is permitted to weigh the absence of corroborating records and documents against the lay evidence of record.” Id., slip op. at 5. Likewise, the Veterans Court found that the Board gave due consideration to the evidence pertaining to AZ’s pregnancy, including the lack of medical records indicating that the pregnancy was a result of sexual assault, again stating that “[t]he Board is permitted to weigh the absence of corroborating records and documents against the lay evidence of record.” Id. at 7. AZ timely appealed the Veterans Court’s decision to this court. We have jurisdiction pursuant to 38 U.S.C. § 7292.
II. AY
Appellant AY served honorably on active duty from July 1980 to July 1983. She was diagnosed with PTSD in 2002. She attributes her PTSD to a sexual assault committed by another soldier during her military training. Her service records contain no record of a report of sexual assault, treatment for sexual assault, or psychiatric problems. She stated that she did not report the alleged assault to military authorities. As discussed below, there is evidence the assault was contemporaneously reported to other individuals.
In 2004, AY filed a claim for service connection for a psychiatric disorder, including PTSD. AY’s ex-husband submitted a statement in support of her claim, stating that she told him about the alleged assault while they were in service together. The RO denied entitlement to service connection.
In August 2005, AY requested that her claim be reopened and submitted three more lay statements from additional individuals who knew her during service. ES, a fellow soldier stationed with AY during training, reported that AY told her about the sexual assault the day after it occurred, and that AY subsequently became despondent and discussed suicide. AH, AY’s roommate at her subsequent duty assignment, reported that AY attempted suicide and received treatment for the incident at a base hospital. AY’s sister stated that prior to entering the military, AY was outgoing, but that afterward, she was “crazy.” AYJ.A. 121.
The RO again denied service connection. The RO acknowledged that AY had “provided statements from [four individuals] who support that they knew you while in service and that you told them about the rape.” AY J.A. 105 (Mar.2006 Rating Decision). But the RO found there was “no evidence” to corroborate the alleged assault:
Sewice Medical Records ... failed to provide any evidence to support that you were raped or attempted suicide while in service. The records provided no information which would be indicative of a personal assault....
Military Personnel Records provided no evidence of any personnel problems or reported rape while in service....
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*1309 service records failed to shoio 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 ....
Id. (emphases added).
AY appealed to the Board. The Board also acknowledged the lay statements, but found that they were “directly contradicted by other evidence,” and that “in this case, other evidence strongly diminishes the[ir] probative value.” In re AY, No. 07-16 960, slip op. at 14 (Bd.Vet.App. Oct. 26, 2009). The Board observed that AY “did not report the [alleged assault] to police at the time that it occurred,” or “to anyone immediately”; that her service records contained no records of psychiatric treatment; and that there was “no record that the Veteran reported that she was sexually assaulted to medical personnel.” Id. at 11-12. The Board found that these omissions contradicted the lay statements, and moreover, that AY’s “service records appeared] to be inconsistent with her reports and the lay statements indicating that the Veteran experienced [severe] depression during service.” Id. at 14. Thus, “the lay statements submitted by the Veteran [we]re insufficient to corroborate her claimed stressor.” Id. at 15. Citing inconsistencies in AY’s accounts of the alleged assault, service records commending AY’s duty performance and “cheerful demeanor,” and other evidence, the Board determined that “the evidence is insufficient to confirm the occurrence of [the alleged sexual] assault.” Id. at 15-16.
AY appealed, contending “that the Board improperly found the lay evidence not credible merely because it was unaccompanied by contemporaneous medical evidence.” See AY v. Shinseki, No. 10-2390, 2011 WL 5966264, slip op. at 2 (Vet.App. Aug. 17, 2011). The Veterans Court disagreed, pointing out that the lay statements were not merely uncorroborated, but contradicted by the absence of records documenting treatment for the suicide attempt as described by AH. See id. The Court also observed that the records commending AY’s duty performance and demeanor “contradicted” the lay statements reporting that AY suffered from depression and other psychiatric problems after the sexual assault. Id. Thus,
[although AY submitted statements regarding the [alleged assault] and lay witnesses submitted statements regarding her demeanor after the [alleged assault], the Board found them inconsistent with other evidence in the record and therefore not credible.
Id. Concluding that “the Board rejected the lay evidence on permissible grounds: internal inconsistencies and contradictions with other evidence in the record,” the Veterans Court affirmed the Board’s finding that there was “no credible supporting evidence corroborating the inservice assault.” Id. AY timely appealed to this court. We have jurisdiction pursuant to 38 U.S.C. § 7292.
Following oral argument in both cases, we requested and received supplemental briefing from the parties on the question of “whether, in considering a disability claim based on in-service sexual assault, the [VA] may properly rely on the absence of contemporaneous service records reporting a sexual assault.” See AZ v. Shinseki, 2012-7046 (Fed.Cir. Mar. 12, 2013); AY v. Shinseki, 2012-7048 (Fed.Cir. Mar. 12, 2013).
DISCUSSION
These cases involve two simple but important questions. The first is whether,
This court’s review (apart from constitutional issues) is limited to questions of law, 38 U.S.C. § 7292(d), and our review of legal issues is without deference. Cook v. Principi, 353 F.3d 937, 938 (Fed.Cir.2003). We have jurisdiction to review the Veterans Court’s legal determinations with respect to “the types of evidence which may support a claim for benefits.” Buchanan v. Nicholson, 451 F.3d 1331, 1335 (Fed.Cir.2006); see id. (holding that “lay evidence is one type of evidence that must be considered, if submitted, when a veteran’s claim seeks disability benefits”); see also Fagan v. Shinseki, 573 F.3d 1282, 1289 (Fed.Cir.2009) (holding that the Veterans Court did not err by disregarding an inconclusive, nonprobative medical opinion because it was “not pertinent evidence, one way or the other” to service connection). Accordingly, we have jurisdiction to hear this appeal. See Fagan, 573 F.3d at 1286; Buchanan, 451 F.3d at 1335.
I
A
By statute, the VA is required to “consider all information and lay and medical evidence of record” in determining service connection, 38 U.S.C. § 5107(b), but the statute also requires that medical and lay evidence be “pertinent,” see 38 U.S.C. § 1154(a)(1). In particular, the statute requires the VA Secretary to adopt regulations
requiring that in each case where a veteran is seeking service-connection for any disability due consideration shall be given to the places, types, and circumstances of such veteran’s service as shown by such veteran’s service record, the official history of each organization in which such veteran served, such veteran’s medical records, and all pertinent medical and lay evidence.
Id. (emphasis added); see also 38 C.F.R. § 3.303(a) (similar).
Establishing service connection for a PTSD claim requires (1) a medical diagnosis of PTSD; (2) “a link, established by medical evidence, between [the] current symptoms and an in-service stressor”; and (3) “credible supporting evidence that the claimed in-service stressor occurred.” 38 C.F.R. § 3.304(f). “[Corroborating evidence of an in-service stressor may in some situations be provided by lay evidence.” See Nat’l Org. of Veterans’ Advocates, Inc. v. Sec’y of Veterans Affairs, 330 F.3d 1345, 1352 (Fed.Cir.2003) (upholding the validity of section 3.304(f)). When a PTSD claim is based on “in-service personal assault,” which includes sexual assault, the regulation provides that
evidence from sources other than the veteran’s service records may corroborate the veteran’s account of the stres-sor incident. Examples of such evidence*1311 include, but are not limited to: records from law enforcement authorities, rape crisis centers, mental health counseling centers, hospitals, or physicians; pregnancy tests or tests for sexually transmitted diseases; and statements from family members, roommates, fellow service members, or clergy.
§ 3.304(f)(5). Supporting evidence found in such sources, if credible and pertinent, is positive evidence of the inservice stressor that the VA must consider.
There is no dispute that a service record documenting an alleged sexual assault, if it existed, would be evidence supporting the conclusion that the alleged assault occurred. However, neither the statute, section 3.304(f)(5), nor any other VA regulation directly addresses the role that the absence of service records reporting the alleged assault should play in a disability determination.
As we explained in Fagan, the VA must consider all evidence “pertinent” to service connection. See 573 F.3d at 1287-88. Pertinent evidence is evidence that is relevant, that is, it must tend to prove or disprove a material fact. See generally Fed.R.Evid. 401; 1 McCormick on Evidence § 185, at 994-1004 (7th ed.2013). Evidence that is insufficiently probative, such as an inconclusive medical report, “provides neither positive nor negative support for service connection,” and “is not pertinent evidence, one way or the other, regarding service connection.” Fagan, 573 F.3d at 1289 (emphasis added); see also 2 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Federal Evidence § 401.07 (2d ed. 2012) (“Weinstein’s Federal Evidence ”) (“[Evidence that] simply does not tend to prove a fact that is of consequence to the action[ ] ... is not relevant.”) (emphases omitted).
The absence of certain evidence may be pertinent if it tends to disprove (or prove) a material fact. See Forshey v. Principi, 284 F.3d 1335, 1358 (Fed.Cir.2002) (en banc) (“[T]he definition of evidence encompasses ‘negative evidence,’ which tends to disprove the existence of an alleged fact....”). In Buchanan, we addressed a situation in which confirmatory service records were absent. There, a veteran seeking service connection for schizophrenia challenged the Board’s refusal to credit several lay statements reporting that he had suffered from symptoms of schizophrenia “while in service or soon thereafter.” 451 F.3d at 1333. The Board found that these lay statements “lack[ed] credibility absent confirmatory clinical records to substantiate such recollections” of the veteran’s in-service symptoms. Id. (quotation marks omitted).
We vacated and remanded. We held that it would be “legally untenable” for the Board to conclude “that absent confirmatory [record] evidence, lay evidence lacks credibility,” and explained that “the lack of such records does not, in and of itself, render lay evidence not credible.” Id. at 1336. We recognized, however, that as a general matter, “the lack of contemporaneous medical records may be a fact that the Board can consider and weigh against a veteran’s lay evidence.” Id.
The appellants do not dispute that the absence of contemporaneous service records of an event or condition will often be pertinent. However, they argue that the absence of contemporaneous service records of unreported inservice sexual assaults is not pertinent, because it is not reasonable to expect that such assaults would have been reported to superior officers, or that records of unreported assaults would exist.
The VA does not dispute that, in the great majority of cases, such incidents are not reported to military authorities, and therefore such records do not exist. The regulatory history of section 3.304(f)(5) reveals that it was enacted in part to address the fact that “[m]any incidents of in-service personal assault are not officially reported.” See Post-Traumatic Stress Disorder Claims Based on Personal Assault, 65 Fed.Reg. 61,132, 61,132 (Oct. 16, 2000) (proposed rule). This is especially true of in-service sexual assaults. The Department of Defense (“DoD”), which is required by statute to report to Congress annually on “[t]he number of sexual assaults [involving] members of the Armed Force[s] that were reported to military officials,” see Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, Pub.L. No. 108-375, § 577(f), 118 Stat. 1811, 1927 (2004), has estimated that a significant majority of in-service sexual assaults are unreported. In 2012, the “[DoD] estimate[d] that about 11 percent of the sexual assaults [involving Service members] that occur each year are reported to a DoD authority.” 1 DoD Sexual Assault Prevention & Response Office (“SAPRO”), Department of Defense Annual Report on Sexual Assault in the Military: Fiscal Year 2012, at 18 (2013) (“2012 SAPRO Report”). DoD estimated that
[i]n 2010, reports by victims accounted for about 14 percent of the sexual assaults estimated to have occurred.... The majority of sexual assaults against Service members each year remain unreported.
DoD SAPRO, Department of Defense Annual Report on Sexual Assault in the Military: Fiscal Year 2010, at 22 (2011) (“2010 SAPRO Report ”).
state[d], with respect to claims based upon a personal assault: “The service record may be devoid of evidence because many victims of personal assault, especially sexual assault and domestic violence, do not file official reports either with military or civilian authorities.”
YR v. West, 11 Vet.App. 393, 398 (1998) (quoting VA Adjudication Procedure Manual M21-1 (Feb. 20,1996)).
Servicemen and servicewomen who experience inservice sexual assaults face “unique” disincentives to report. See DoD Care for Victims of Sexual Assault Task Force, Report on Care for Victims of Sexual Assault 28 (2004) (“2004 Task Force Report ”) (“Finding 12: There are barriers to reporting incidents of sexual assault. Some are consistent with those in the civilian community while others are unique in a military setting.”). DoD findings from 2010 indicate that more than half of the female service members who experienced, but did not report, an incident of unwanted sexual contact
In sum, due to numerous disincentives to reporting, “[o]ver the past 6 years, the [DoD] estimates that fewer than 15 percent of military sexual assault victims reported] the matter to a military authority.” 2012 SAPRO Report, supra, at 53.
There is also no reason to believe that the most severe assaults are reported with greater frequency. First, the government has not suggested that this is the case. Second, there is no reason to believe that the factors which usually deter reporting, such as fear of stigma or fear of reprisal by the perpetrator, are lessened in those cases where a rape is completed. Third, the DoD has consistently stated that the underreporting of rape is a significant problem. See generally Office of the Inspector General of the DoD, Interim Report on the USAFA Sexual Assault Survey (2003) (discussing incidence and reporting of in-service rape); see also, e.g., DoD, 2006 DoD Annual Report on Military Services Sexual Assault for Calendar Year 2006, at 2 (2007). Fourth, the DoD figures from the pre-2007 period, when “sexual assault” was defined more narrowly (as rape, noneon-sensual sodomy, indecent assault, and attempts to commit those offenses), indicate that the vast majority of offenses were not reported. See 2010 SAPRO Report, supra, at 22, 98 (comparing estimates for 2006 (93% unreported to the DoD) and 2010 (86% unreported to the DoD)).
[o]f the 60 Women [reporting at least one event of unwanted sexual contact], 26 reported completed sex or other sex acts, 29 reported attempted sex or other sex acts, and 49 reported sexual touching.
... Only 3 (5%) Women reported [the incident affecting them most] to an authority or organization.
USAFA, Report on Sexual Harassment and Violence: USAFA Academy Program Year 2006 16 (2006). A 2003 survey similarly found that of 26 female cadets who reported experiencing a single incident of sexual assault which involved rape or attempted rape, six had reported the assault to military authorities, Office of the Inspector General of the DoD, supra, at 17-18, and further noted that three of these six cadets reported suffering reprisal by their peers or by military authorities. Id.
Appellants argue that given the pervasive nonreporting of in-service sexual assaults, the Board and Veterans Court acted contrary to the statute and section 3.304(f)(5) by “aceordfing] evidentiary status to the absence of [service record] evidence” reporting the alleged assaults. See AZ Br. 20; AY Br. 21.
At common law, the majority of courts held that where circumstances supported the conclusion that “an entry ^vould naturally have been made if a transaction had occurred,” then evidence showing the absence of an entry “should ordinarily be equivalent to an assertion that no such transaction occurred, and therefore should be admissible in evidence for that purpose.” 5 John Henry Wigmore, Evidence in Trials at Common Lato § 1531, at 463 (James H. Chadbourn rev., 1974) (“5 Wig-more on Evidence ”) (emphasis added); see also id. n.2 (collecting cases).
This rule has long been followed by the Supreme Court. For example, in Chesapeake & Delaware Canal Co. v. United States, the Supreme Court explained that evidence of the absence of a payment entry from Treasury Department records was admissible as evidence of nonpayment, because
[s]uch books so kept presumptively contained a record of all payments made and the absence of any entry of payment, where it naturally would have been found if it had been made, was evidence of nonpayment proper for the consideration of the jury.
250 U.S. 123, 129, 39 S.Ct. 407, 63 L.Ed. 889 (1919) (emphases added). Similarly, evidence of “[t]he absence of all traces of [land] grants, where evidence would usually be found, if it had existed,” is admissible to show a purported grant was never made. Hornsby v. United States, 10 Wall. 224, 77 U.S. 224, 241, 19 L.Ed. 900 (1870) (emphasis added). The rule is logical because where a comprehensive record of events is regularly kept, as in an archive of land grants, “[t]he absence of any record evidence is remarkable, if the title is genuine.” United States v. Teschmaker, 63 U.S. 392, 405, 22 How. 392, 16 L.Ed. 353 (1860).
Following this general approach, lower federal courts applying common law evidentiary principles have generally held that “[t]he absence of a record of an event which would ordinarily be recorded gives rise to a legitimate negative inference that the event did not occur.” See United States v. Robinson, 544 F.2d 110, 114 (2d Cir.1976) (emphasis added); see also United States v. De Georgia, 420 F.2d 889, 893 (9th Cir.1969) (“[I]f a business record designed to note every transaction of a particular kind contains no notation of such a transaction between specified dates, no such transaction occurred between those dates.”) (emphasis added); Keith v. United States, 250 F.2d 355, 356 (5th Cir.1957) (holding that an agent’s testimony that “he checked with the police department, the sheriffs office, public utilities, chamber of commerce, telephone and business directories and talked to local residents” but found no record of a person was admissible as proof that the person was fictitious); Nichols v. United States, 48 F.2d 46, 49 (5th Cir.1931) (similar).
The common-law rule has been codified in Rule 803 of the Federal Rules of Evidence, which represents a “synthesis” of common law principles. See Fed.R.Evid. 803 advisory committee’s note (1972). While these rules are not mandatory in VA disability hearings, they are further evidence of the common law approach, and we agree with the Veterans Court that they offer useful guidance. See Gambill v. Shinseki, 576 F.3d 1307, 1330 (Fed.Cir.2009) (Moore, J., concurring) (recognizing that the Veterans Court has looked to the Federal Rules as “ ‘guiding factors to be used by the Board in evaluating the probative value of medical opinion evidence’ ” (quoting Nieves-Rodriguez v. Peake, 22 Vet.App. 295, 302 (2008))); see also Stevenson v. Linens of the Week, 688 F.2d 93, 98-99 (D.C.Cir.1982) (approving the Benefits Review Board’s reliance by analogy to Rule 803 “on the principle that the absence of an entry in a business record is probative of the nonoccurrence of the event in question”).
Rule 803(7) allows admission of “[e]vi-dence that a matter is not included in a record” of a regularly conducted activity in order “to prove that the matter did not occur or exist,” so long as “a record was regularly kept for a matter of that kind” and there are no “circumstances indicating] a lack of trustworthiness.” Fed.
Notably for our purposes, both rules require for admissibility that “a record was regularly kept” for the type of event in question. See Fed.R.Evid. 803(7); see also Fed.R.Evid. 803(10)(B). To establish that the record tends to prove (or disprove) a matter, it is “crucial” to “[d]emonstrat[e] that the records were kept in such a way that the matter loould have been recorded had it occurred.” 5 Weinstein’s Federal Evidence, supra, at § 803.09 (emphasis added) (discussing Rule 803(7)); see also United States v. Rich, 580 F.2d 929, 938 (9th Cir.1978) (noting that Rules 803(7) and 803(10) “are grounded on the high' probability of [the records’] accuracy”).
There is no reason why the well-established commonlaw principle concerning the inadmissibility of unreliable record evidence should not be followed here. Indeed, the Veterans Court has held in similar circumstances that where a condition would not normally have been recorded, “the Board may not consider the absence of [administrative record] evidence as substantive negative evidence” of that condition. See Buczynski v. Shinseki, 24 Vet.App. 221, 224 (2011). In Buczynski, the Veterans Court ruled that the Board erred in basing its determination that a veteran’s skin condition was “not exceptionally repugnant” on the absence of a medical record documenting such a condition:
[T]here [was not] any medical reason why a doctor would be expected to comment on the repugnance of [the veteran’s] condition. Therefore, this is not a situation where the silence in regard to a condition can be taken as proof that a doctor did not observe the symptom.
Id. at 224 (emphasis added); see also id. (citing Federal Rule of Evidence 803(7)).