Arnold Kyhn v. Shinseki ( 2013 )

United States Court of Appeals
for the Federal Circuit
______________________
ARNOLD C. KYHN,
Claimant-Appellant,
v.
Eric K. Shinseki, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
______________________
2012-7003
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in Case No. 07-2349.
______________________
Decided: May 3, 2013
______________________
PERRY A. PIRSCH, Berry Law Firm, PC, of Lincoln,
Nebraska, argued for the claimant-appellant. Of counsel
was JEANNE A. BURKE, of Omaha, Nebraska.
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 TODD M. HUGHES, Deputy
Director. Of counsel on the brief were MICHAEL J.
KYHN v. SHINSEKI 2
TIMINSKI, Deputy Assistant General Counsel, and
Jonathan E. Taylor, Attorney, United States Department
of Veteran Affairs, of Washington, DC.
______________________
Before RADER, Chief Judge, LOURIE, AND WALLACH, Circuit
Judges.
Opinion for the court filed by Circuit Judge WALLACH.
Dissenting opinion filed by Circuit Judge LOURIE.
WALLACH, Circuit Judge.
Arnold C. Kyhn appeals from the decision of the
United States Court of Appeals for Veterans Claims
(“Veterans Court”) affirming the Board of Veterans’
Appeals’ (“Board”) denial of Mr. Kyhn’s tinnitus claim.
Kyhn v. Shinseki, 24 Vet. App. 228 (2011) (“Kyhn II”). In
particular, Mr. Kyhn challenges the Veterans Court’s
reliance on affidavits that were not part of the record
before the Board. Because the Veterans Court lacked
jurisdiction to rely on this extra-record evidence, we
vacate and remand.
BACKGROUND
Mr. Kyhn served in the United States Army from May
1945 to October 1946. In February 1998, he filed a claim
for service-connected hearing loss, which was denied by
the Veterans Affairs (“VA”) regional office (“RO”). Mr.
Kyhn submitted a Notice of Disagreement (“NOD”),
accompanied by medical evidence from his private
audiologist that he suffered from hearing loss attributable
to his military service. Mr. Kyhn also asserted in his
NOD that he was seeking service connection for tinnitus.
After various proceedings, the RO granted service
connection for hearing loss at a 50% rating, but denied
service connection for tinnitus. Mr. Kyhn did not appeal
this decision and it became final.
In January 2004, Mr. Kyhn sought to reopen his
tinnitus claim, and presented another letter from his
KYHN v. SHINSEKI 3
private audiologist stating that Mr. Kyhn’s “history of
noise exposure while in the military, without the benefit
of hearing protection, . . . is quite likely . . . the beginning
of [his] hearing loss and tinnitus.” Kyhn II, 24 Vet. App.
at 231. Although the RO declined to reopen the tinnitus
claim, the Board found the private audiologist’s statement
constituted new and material evidence and remanded to
the RO to afford Mr. Kyhn a VA examination to “ascertain
the etiology and severity of any tinnitus that may be
present.” Id. The RO scheduled an examination for
March 7, 2006, but Mr. Kyhn failed to attend. Not long
after, the Board denied service connection for tinnitus,
based on the evidence of record. 1 Mr. Kyhn appealed to
the Veterans Court.
Before the Veterans Court, Mr. Kyhn argued, inter
alia, that there was good cause for his failure to attend
the VA examination because the VA failed to provide him
with notice of when it was scheduled. The Veterans Court
applied the presumption of regularity to presume that Mr.
Kyhn had received notice of the examination, and
affirmed the Board’s denial of service connection.
To determine whether the presumption of regularity
applied, the Veterans Court ordered the Secretary of
Veterans Affairs (“Secretary”) to provide the court with
“information concerning the regular process by which VA
notifies veterans of scheduled VA examinations.” Kyhn II,
24 Vet. App. at 233. The Secretary complied and
submitted two affidavits from VA employees, only one of
whom professed personal knowledge of the regular
1 The Board explained that when a veteran fails to
attend a scheduled examination, “the claim shall be rated
on the evidence of record.” In re Kyhn, No. 99-21-607, slip
op. at 5 (Bd. Vet. App. May 17, 2007) (citing 38 C.F.R. §
3.655).
KYHN v. SHINSEKI 4
practice for mailing such notice to veterans. 2 Jo Ellen
Bash, a manager at the VA Medical Center (“VAMC”) in
Omaha, Nebraska, stated that a scheduling clerk
typically provided a veteran with notice of his VA
examination by “electronically generat[ing] a letter to the
veteran” from the Automated Medical Information
Exchange system. J.A.88.
Relying on this evidence, the Veterans Court found
the VA had a regular practice to provide veterans with
notice of their VA examinations and applied the
presumption of regularity to presume the VA had
properly notified Mr. Kyhn in accordance with this
practice. 3 The Veterans Court further held that the
absence of a copy of notice in Mr. Kyhn’s claims file and
prior irregularities in processing his claim did not
“constitute clear evidence to rebut the presumption of
regularity . . . .” Kyhn II, 24 Vet. App. at 236.
Having presumed that notice of the examination was
mailed to Mr. Kyhn, the Veterans Court affirmed the
Board’s denial of Mr. Kyhn’s tinnitus claim. Id. at 238.
Mr. Kyhn then moved for rehearing and full court review,
2 The other employee, Margaret Bunde stated that
the VA Medical Center, rather than the RO, was tasked
with mailing the veteran notice of an examination.
J.A.100. However, as an employee of the RO and not the
VAMC, Ms. Bunde was unable to describe how the VAMC
mailed notice to veterans.
3 The Veterans Court decision discussed herein was
issued on January 18, 2011, Kyhn II, 24 Vet. App. at 228,
after panel reconsideration of an earlier decision issued on
January 15, 2010, Kyhn v. Shinseki, 23 Vet. App. 335(2010) (“Kyhn I”). Both Kyhn I and Kyhn II affirmed the
Board decision and are similar in most respects, except
that Kyhn II more fully explains the basis for admitting
the affidavits and applying the presumption of regularity.
KYHN v. SHINSEKI 5
arguing that the panel’s reliance on extra-record evidence
was an improper departure from Veterans Court
precedent. The motion for rehearing was denied.
However, Chief Judge Kasold and Judge Hagel dissented
from the denial, on the ground that the full court should
decide the Veterans Court’s authority to “obtain and
consider evidence not in the record before the agency to
resolve a non-jurisdictional issue.” Kyhn v. Shinseki, 2011
U.S. App. Vet. Claims LEXIS 1566, *1–2 (Vet. App. July
25, 2011). Mr. Kyhn filed this timely appeal.
DISCUSSION
This court’s jurisdiction to review decisions of the
Veterans Court is limited by statute. Pursuant to
38 U.S.C. § 7292(a), this court has jurisdiction to review
“the validity of a decision of the [Veterans] Court on a rule
of law or of any statute or regulation . . . or any
interpretation thereof (other than a determination as to a
factual matter) that was relied on by the [Veterans] Court
in making the decision.” Except to the extent that a
constitutional issue is presented, this court may not
review “a challenge to a factual determination,” or “a
challenge to a law or regulation as applied to the facts of a
particular case.” 38 U.S.C. § 7292(d)(2). The Veterans
Court’s legal determinations are reviewed de novo.
Cushman v. Shinseki, 576 F.3d 1290, 1296 (Fed. Cir.
2009). Mr. Kyhn’s appeal raises the legal question of
whether the Veterans Court acted beyond its jurisdiction
when it relied on evidence not in the record before the
Board and engaged in first-instance fact finding. See
Winters v. Gober, 219 F.3d 1375, 1379 (Fed. Cir. 2000)
(reviewing the legal issue of whether the Veterans Court
exceeded its statutory authority).
The Veterans Court has jurisdiction “to review
decisions of the Board . . . on the record of the proceedings
before the Secretary and the Board.” 38 U.S.C. § 7252(a),
(b); see also Henderson v. Shinseki, 589 F.3d 1201, 1212
KYHN v. SHINSEKI 6
(Fed. Cir. 2009) rev’d and remanded on other grounds sub
nom Henderson ex rel. Henderson v. Shinseki, 131 S. Ct.
1197 (2011) (“[T]he Veterans Court reviews each case that
comes before it on a record that is limited to the record
developed before the RO and the Board.”). The Veterans
Court’s jurisdiction to review the Board is further “limited
to the scope provided in section 7261 of [Title 38].” 38
U.S.C. § 7252(b). Section 7261 allows the Veterans Court
to review “questions of law de novo, questions of fact for
clear error, and certain other issues under the ‘arbitrary,
capricious, abuse of discretion, not otherwise in
accordance with law’ standard.” Garrison v. Nicholson,
494 F.3d 1366, 1368 (Fed. Cir. 2007) (quoting 38 U.S.C. §
7261(a)). Moreover, section 7261(c) makes clear that “[i]n
no event shall findings of fact made by the Secretary or
the Board . . . be subject to trial de novo by the [Veterans]
Court.” 38 U.S.C. § 7261(c). This subsection “prohibits
the Veterans Court from making factual findings in the
first instance.” 4 Andre v. Principi, 301 F.3d 1354, 1362
(Fed. Cir. 2002).
1. The Veterans Court Considered Evidence That Was
Not In the Record Before the Board
In this case, the Veterans Court’s decision denying
relief for Mr. Kyhn relied upon affidavits from two VA
employees, neither of which was in the record before the
Board. Such reliance on extra-record evidence was in
4 Contrary to the dissent’s position, section 7261 is
relevant here even though the Board made no underlying
finding of fact. By making an independent finding of fact
absent an underlying factual finding by the Board, the
Veterans Court both exceeds its jurisdiction to “review”
the Board’s decision under § 7252 and impermissibly
engages in first-instance fact finding barred by § 7261.
See Deloach v. Shinseki, 704 F.3d 1370, 1380 (Fed. Cir.
2013).
KYHN v. SHINSEKI 7
contravention of the jurisdictional requirement that
“[r]eview in the [Veterans] Court shall be on the record of
proceedings before the Secretary and the Board.” 38
U.S.C. § 7252(b).
On appeal, the Secretary argues that such reliance
was permissible because “[i]t is well established that
courts have discretion to take judicial notice of matters
outside the record.” Secretary’s Br. at 18 (citing Fed. R.
Evid. 201). However, to the extent the Secretary relies on
Fed. R. Evid. 201 as authority for the Veterans Court’s
otherwise impermissible consideration of extra-record
evidence, that reliance is misplaced. 5 The affidavits in
this case were from a party’s employees regarding
otherwise unknown internal procedures. Such evidence is
neither “generally known” nor “from sources whose
accuracy cannot reasonably be questioned.” 6 Fed. R. Evid.
5 Although the Federal Rules of Evidence are not
generally applicable to the Veterans Court, the Veterans
Court has relied on Fed. R. Civ. P. 201 in the past as
justification for its consideration of extra-record
materials. See, e.g., D'Aries v. Peake, 22 Vet. App. 97, 105
(2008) (relying on Fed. R. Evid. 201(b) as authority to
take judicial notice of a fact in DORLAND’S ILLUSTRATED
MEDICAL DICTIONARY 1285 (31st ed. 2007), specifically,
that “neurology is the medical specialty that deals with
the nervous system”).
6 Certain inconsistencies in Ms. Bash’s affidavit
confirm that her testimony was neither “generally known”
nor from a source “whose accuracy cannot reasonably be
questioned.” Fed. R. Evid. 201. For instance, she says the
notification letters must be generated by the scheduling
clerk, but later says the letters are “automatically
generated.” J.A.88–89. Nor does she testify to the regular
procedure for mailing the letters, including whether
address information is input manually or automatically or
the number of business days before a letter is mailed.
KYHN v. SHINSEKI 8
201. Thus, they are not the “kinds of facts that may be
judicially noticed.” Id. (heading format modified); see also
Murakami v. United States, 398 F.3d 1342, 1355 (Fed.
Cir. 2005); In re Kahn, 441 F.3d 977, 990 (Fed. Cir. 2006).
Nor, as the Secretary contends, are the affidavits of a
party’s employees similar to authorities such as VA
manuals. See Kyhn II, 24 Vet. App. at 234 (“[W]hile VA
has a written procedure for scheduling examinations that
is set forth in its manuals, it does not have written
instructions regarding the procedures it follows to notify a
claimant of a scheduled examination.”). The Veterans
Court has rejected similar arguments in the past: “[The]
characterization of the aforementioned materials as
‘authorities’ does not magically transform their status in
this appeal. All of appellant’s proffered supplementary
materials are evidentiary in nature and, as such, may not
come in through the back door by way of citation as
‘supplemental authorities.’” Godfrey v. Derwinski, 2 Vet.
App. 352, 355 (1992) (excluding television news program
transcripts because “[t]hey obviously do not constitute
legal authority; nor do they provide a description of ‘facts
not subject to reasonable dispute,’” and thus they “may
not be considered in the first instance by the [Veterans]
Court”) (internal citations omitted). The affidavits in this
case are similarly “evidentiary in nature” and may not be
considered in the first instance by the Veterans Court. 7
Nevertheless, she states that Mr. Kyhn’s notice letter
“would have been mailed out to his address of record on
February 11 or 12, 2006.” J.A.89.
7 Contrary to the dissent’s analysis, Dissenting Op.
at 2–3, the Veterans Court’s practice of admitting
applications for attorney’s fees is premised on
independent statutory authority in the Equal Access to
Justice Act (“EAJA”) and is thus inapposite to its reliance
on extra-record affidavits in this case. See 28 U.S.C. §
2412 (providing independent authority for the Veterans
KYHN v. SHINSEKI 9
The Secretary also argues that the Veterans Court’s
reliance on the newly-submitted evidence was permissible
because “[i]t was Mr. Kyhn who prompted the Veterans
Court’s inquiry into VA’s procedure by asserting, for the
first time, before the Veterans Court that he had not
received notice of the scheduled March 2006 VA
examination . . . .” Secretary’s Br. at 15. If true, the fact
that Mr. Kyhn failed to previously raise his lack of notice
argument would be relevant to whether he waived that
argument before the Veterans Court, 8 but would not
authorize the Veterans Court to act outside the bounds of
its jurisdiction by relying on extra-record evidence. Cf.
Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de
Guinee, 456 U.S. 694, 702 (1982) (“[N]o action of the
parties can confer subject-matter jurisdiction upon a
federal court.”). Thus, the Veterans Court’s reliance on
Ms. Bunde’s and Ms. Bash’s affidavits exceeded the
Veterans Court’s limited jurisdiction to review the Board’s
decision based upon the record before the Board. See 38
U.S.C. § 7252(b).
2. The Veterans Court Improperly Engaged in Fact
Finding in the First Instance
The Veterans Court further erred by relying on the
extra-record evidence to make a finding of fact in the first
Court’s admission and consideration of “an application for
fees and other expenses.”); see also Bazalo v. Brown, 9
Vet. App. 304, 307–308 (1996) rev’d on other grounds,
Bazolo v. West, 150 F.3d 1380 (Fed. Cir. 1998) (noting a
statutory amendment making “the EAJA applicable to
[the Veterans] Court”).
8 The Veterans Court’s decision contains a half-
formed waiver analysis, but does not rely upon waiver as
an alternative basis for its holding. Kyhn II, 24 Vet. App.
at 235–236. On appeal, the Secretary does not argue
waiver as an alternative basis for affirmance.
KYHN v. SHINSEKI 10
instance. See Deloach v. Shinseki, 704 F.3d 1370, 1380
(Fed. Cir. 2013) (citing Andre, 301 F.3d at 1362). In
particular, the court found the affidavits proved “that VA
does have an established procedure for notifying
claimants of [VA] examinations.” Kyhn II, 24 Vet. App. at
234. The Veterans Court explained this was not an
impermissible finding of fact, because it considered the
affidavits solely “[a]s part of the de novo process for
determining whether the presumption of regularity
attaches . . . .” Id. at 233–234. However, this rationale
does not transform the Veterans Court’s factual finding
into a legal conclusion.
This case differs from other instances where the
presumption of regularity was premised upon
independent legal authority rather than on evidentiary
findings. See, e.g., Miley v. Principi, 366 F.3d 1343, 1346–
47 (Fed. Cir. 2004) (presuming that VA officials acted
consistently with their legal duty under 38 U.S.C. §
7105(b)(1) to mail the veteran notification of a rating
decision); Butler v. Principi, 244 F.3d 1337, 1340–41 (Fed.
Cir. 2001) (presuming VA officials acted consistently with
their legal duty under 38 U.S.C. § 5104(a) to mail the
veteran notice of appeal rights). Here, the Veterans Court
weighed the affidavits to find that the VA had a regular
practice of providing notice of VA examinations. This
finding improperly resulted from the “evaluation and
weighing of evidence” in the first instance. Deloach, 704
F.3d at 1380. The Veterans Court’s application of the
presumption of regularity to this factual finding does not
convert the underlying finding into a legal conclusion. 9
9 An analogy may be helpful. There is a
rebuttable presumption that a properly-addressed and
mailed letter has reached its destination. Rios v.
Nicholson, 490 F.3d 928, 930–31 (Fed. Cir. 2007).
Although this presumption is a rule of law, its application
is triggered by the preliminary factual findings that the
KYHN v. SHINSEKI 11
To the contrary, the Veterans Court’s fact finding in the
first instance exceeded its jurisdiction to review the Board
based on the record before the Board. See id.CONCLUSION
The Veterans Court improperly relied upon extra-
record evidence to make a finding of fact in the first
instance, and, in so doing, acted outside its statutorily-
granted jurisdiction to review the Board’s decision based
upon the record before the Board. The dissent may be
correct that undertaking the proper procedure in this case
would ultimately result in the same outcome and “only
further delay the proceedings.” Dissenting Op. at 6.
Nevertheless, Congress vested the Veterans Court with
limited jurisdiction, and even the weighty interests of
judicial economy cannot enlarge that which a statute has
directly limited. 10 Because the Veterans Court exceeded
letter was properly addressed and mailed. Likewise, the
presumption that VA officials properly sent Mr. Kyhn
notice of his examination was based on the Veterans
Court’s preliminary finding, based on the affidavits, that
the VA had a regular practice of providing notice of VA
examinations. Cf. Routen v. West, 142 F.3d 1434, 1440
(Fed. Cir. 1998) (citing Weinstein’s Federal Evidence §
301.02[1], at 301–07 (2d ed. 1997); McCormick on
Evidence § 342, at 450 (John W. Strong ed., 4th ed. 1992))
(explaining that “predicate evidence” must be established
before a presumption is triggered).
10 Although the dissent is concerned that reversal
in this case could “set a standard” requiring repeated
remands to the Board for factual finding, Dissenting Op.
at 6, this opinion only requires that the Veterans Court
follow the law confining its jurisdiction. Past decisions of
this court have required the same. See, e.g., Hensley v.
West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (holding the
Veterans Court lacked jurisdiction to engage in fact
KYHN v. SHINSEKI 12
its jurisdiction in deciding this case, its decision is vacated
and remanded. 11
VACATE AND REMAND
finding in the first instance, and explaining that remand
to the Board was required if there was “insufficient
factual development of the record”).
11 Having granted Mr. Kyhn’s requested relief, we
need not decide his additional arguments that the
Veterans Court’s reliance on extra-record evidence
violated his due process rights and right to two
administrative reviews.
United States Court of Appeals
for the Federal Circuit
______________________
ARNOLD C. KYHN,
Claimant-Appellant,
v.
Eric K. Shinseki, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
______________________
2012-7003
______________________
Appeal from the United States Court of Appeals
for Veterans Claims in No. 07-2349.
______________________
LOURIE, Circuit Judge, dissenting.
I respectfully dissent from the majority’s decision to
vacate and remand the decision of the United States
Court of Appeals for Veterans Claims (“Veterans Court”)
affirming the decision of the Board of Veterans’ Appeals
(“Board”) holding that Kyhn lacked service connection for
tinnitus. Kyhn v. Shinseki, 24 Vet. App. 228 (2011)
(“Kyhn II”). Because I believe that the Veterans Court
did not err in requesting information from the Depart-
ment of Veterans Affairs (“VA”) concerning its practice of
scheduling and notifying veterans of medical examina-
tions and also did not err in determining, based on the
2 KYHN v. SHINSEKI
VA’s response, that Kyhn was presumed to have received
that notice, I would affirm.
Under 38 U.S.C. § 7252, the Veterans Court is vested
with the authority “to review decisions of the Board of
Veterans’ Appeals” and such review “shall be on the
record of the proceedings before the Secretary and the
Board.” Section 7261(c) also states that “[i]n no event
shall findings of fact made by the Secretary or the Board
of Veterans’ Appeals be subject to trial de novo by the
Court.” 38 U.S.C. § 7261(c). In my view, Kyhn’s argu-
ment that the Veterans Court violated these provisions
fails because neither of these provisions applies to the
circumstances of this case. There was no finding of fact
tried de novo by the Veteran’s Court.
First, I note preliminarily that the Veterans Court’s
determination that the VA has a regular process for
providing notice of scheduled examinations is not barred
by § 7252(b). The Veterans Court has jurisdiction over a
number of areas of seemingly first-instance factual in-
quiry that were not “on the record of the proceedings
before the Secretary and Board” under § 7252(b), includ-
ing determining both the regularity of procedure and
relying on outside affidavits not in the record.
For example, the Veterans Court has taken judicial
notice of affidavits to establish facts that were not rele-
vant at the Board level. Fed. R. Evid. 201; see B.V.D.
Licensing Corp. v. Body Action Design, Inc., 846 F.2d 727,
728 (Fed. Cir. 1988) (“Courts may take judicial notice of
facts of universal notoriety, which need not be proved, and
of whatever is generally known within their jurisdic-
tions.”); Smith v. Derwinski, 1 Vet. App. 235, 238 (1991)
(“Courts may take judicial notice of facts not subject to
reasonable dispute.”). Further, the Veterans Court has
considered affidavits in resolving jurisdictional disputes.
Clark v. Principi, 15 Vet. App. 61, 62 (2001); Timberlake
v. Gober, 14 Vet. App. 122, 132 (2000). The Veterans
KYHN v. SHINSEKI 3
Court has also reviewed evidence not in the record to
resolve motions for attorney’s fees. E.g., Bazalo v. Brown,
9 Vet. App. 304 (1996) (en banc), rev’d on other grounds,
Bazolo v. West, 150 F.3d 1380 (Fed. Cir. 1998).
The Veterans Court likewise could have, if it needed
to, taken judicial notice of VA procedures found in manu-
als existing at the VA prior to the appeal. Johnson v.
Shinseki, 23 Vet. App. 344, 351 (2010); cf. Marsh, 19 Vet.
App. at 386–87 (VA regulations relevant to establish VA
procedure). Those procedures are not always set forth in
published form, Johnson, 23 Vet. App. at 351; Smith v.
Shinseki, 24 Vet. App. 40, 46 (2010), and, indeed, prior
opinions of the Veterans Court have faulted the govern-
ment for not filing affidavits of VA personnel to support
an argument on the regularity of practice, Posey v.
Shinseki, 23 Vet. App. 406, 410 (2010) (“At no time has
the Secretary produced, or offered to produce, affidavits of
VA personnel to support his argument that simply noting
on an internal document that a Board decision was re-
mailed on a particular date plausibly demonstrates the
actual date the Board decision was re-mailed, nor did he
file any attachments with his brief demonstrating an
established policy for the re-mailing of Board decisions.”);
see Chabebe v. Shinseki, No. 09-0114, 2010 WL 3230804(Vet. App. Aug. 16, 2010) (“The foundation of any pre-
sumption of regularity is a showing, by affidavit or other-
wise, what the regular procedure may be.”).
As with jurisdictional matters, evidence regarding
regularity is not used to adjudicate the merits of a claim.
Such evidence is only used to establish whether a pre-
sumption of regularity attaches. The affidavits in this
circumstance were properly used to establish that pre-
sumption, not to establish the fact that Kyhn had been
notified. In the limited circumstance where a VA proce-
dure needs to be established, I believe that the Veterans
Court can take judicial notice of VA procedures based on
4 KYHN v. SHINSEKI
affidavits provided by the VA that are not subject to
reasonable dispute.
The majority relies on apparent inconsistencies in the
affidavits to argue that the Veterans Court cannot take
judicial notice of their contents. Majority Op. at 7 n.5
These arguments were not raised by Kyhn before the
Veterans Court. Indeed, Kyhn, in moving for reconsidera-
tion, did not challenge the substance of those affidavits,
only the procedure by which they were considered. Re-
gardless, the alleged inconsistencies, such as whether the
letter is generated and addressed automatically or manu-
ally and the number of days before mailing, are not con-
trolling. Such a level of granularity is not significant. In
this instance, the fact that the affidavits consistently note
that a letter is generated, addressed according to the
address on file, and then subsequently mailed is sufficient
to establish the existence of the procedure.
Second, section 7261(c) is irrelevant here because
there was no finding of fact by the Board that the Veter-
ans Court reviewed de novo. The issue of the regular
procedure of the VA only became relevant in response to a
defense raised by Kyhn on appeal in the Veterans Court.
Because it had not been raised below, the Board had no
opportunity to engage in any findings of fact under
§ 7261(c) that could be subject to review by the Veterans
Court.
The case relied on by the majority for arguing that
§ 7261(c) still applies despite the VA not engaging in any
fact-finding, Deloach v. Shinseki, 704 F.3d 1370, 1380
(Fed. Cir. 2013), is inapposite as it does not discuss the
presumption of regularity and ignores the circumstances,
previously discussed when the Veterans Court can and
does engage in limited fact-related finding in the first
instance, including in establishing the presumption of
regularity. Even so, irrespective of the appropriate
KYHN v. SHINSEKI 5
standard of review, because the VA made no fact-finding,
I believe that § 7261(c) was not violated.
Moreover, the long-standing practice at the Veterans
Court is to review the application of the presumption of
regularity de novo as a matter of law. E.g., Marsh v.
Nicholson, 19 Vet. App. 381, 386 (2005). Under that
standard, the question whether the presumption of regu-
larity applies is not a finding of fact at all, and thus
§ 7261(c) would not apply even if the VA had addressed
the presumption of regularity in the first instance. There
is, however, a disconnect between our case law and that of
the Veterans Court on the applicable standard of review,
which the majority attempts to reconcile. See Eschevar-
ria-North v. Shinseki, 437 F. App’x 941, 946–47 (Fed. Cir.
2011) (unpublished) (stating that the question of the
presumption of regularity is either a question of fact or
the application of law to fact). If the applicability of the
presumption of regularity is a question of fact or applica-
tion of law to fact, then we cannot review that determina-
tion, including the supposed conflicting contents of any
affidavits, as it is beyond our jurisdiction. See id. But the
question of the proper standard of review is not before us
as the Board engaged in no actual fact-finding.
While the majority does not reach the due process is-
sues raised by Kyhn, I would also agree with the Veterans
Court that Kyhn was not deprived of due process. Both
the Board and the RO considered his claim for service
connection for tinnitus, and Kyhn had the opportunity to
submit evidence before both entities. Kyhn, after being
notified by the RO in 2006 that he failed to attend the VA
examination, did not respond that he had not been noti-
fied of the examination. Indeed, he did not offer any
explanation for his failure to attend. Instead, in response
to the RO’s denial of Kyhn’s claim after he failed to ap-
pear, Kyhn represented that he had no other information
to substantiate his claim and that he did not contest the
notice of the examination. Kyhn did not even dispute that
6 KYHN v. SHINSEKI
the address the notice was mailed to was incorrect.
Kyhn’s failure to take advantage of the opportunities at
the VA and at the Board is thus not a deprivation of
agency review. See Nat’l Classification Comm. v. United
States, 779 F.2d 687, 695 (D.C. Cir. 1985).
There is likewise no evidence that the Veterans Court
denied Kyhn an opportunity to dispute the contents of the
affidavits regarding the VA’s regular notification proce-
dure. Kyhn, in fact, did not dispute the accuracy of the
affidavits at all in his supplemental briefing or offer any
evidence to the contrary. Instead, he only opposed the
propriety of the Board considering those affidavits.
Again, Kyhn simply failed to take advantage of the oppor-
tunities afforded him and thus was not deprived of due
process.
Finally, I recognize that in some circumstances the
Veterans Court has remanded a case to the Board for
limited fact-finding on non-jurisdictional notice issues.
E.g., Mayfield v. Nicholson, 20 Vet. App. 98, 99 (2006)
(remanding for a factual determination by the Board
whether the notice given to the veteran was sufficient).
However, in this case, where the evidence is only relevant
to establish as a matter of law the regular procedure of
the VA, not the merits of the actual notice in a given
claim, requiring such a remand would only further delay
the proceedings, needlessly churning the system to estab-
lish only the existence of a regular practice that would
ultimately still be subject to de novo review by the Veter-
ans Court under existing precedent.
To reverse would likely cause a remand to the Board
to determine its own practice in the first instance. Be-
cause waiver is rare at the pro-claimant Veterans Court, a
reversal could set a standard that newly raised defenses
in the Veterans Court could repeatedly trigger remand to
the Board and further delay resolution of proceedings.
KYHN v. SHINSEKI 7
Judicial economy warrants against allowing such a waste-
ful process.
For the foregoing reasons, I respectfully dissent from
the majority’s decision reversing and remanding the
decision of the Veterans Court.