Arnold Kyhn v. Shinseki
2013 U.S. App. LEXIS 9027
| Fed. Cir. | 2013Background
- Kyhn served in the U.S. Army from May 1945 to October 1946.
- He first filed a hearing loss claim in February 1998, which the VA RO denied; tinnitus was also claimed but denied, and the denial became final.
- In January 2004, Kyhn moved to reopen tinnitus, submitting a private audiologist’s statement linking noise exposure to hearing loss and tinnitus; the RO declined to reopen, but the Board remanded for etiology and severity assessment of possible tinnitus.
- Kyhn missed a March 7, 2006 VA examination; the RO notified him, but Kyhn challenged lack of notice.
- The Veterans Court relied on affidavits from VA employees not in the Board record and applied the presumption of regularity to find proper notice.
- This extra-record evidence and first-instance factual weighing led to affirmance of the Board’s denial, which the Federal circuit afterwards vacated and remanded for lack of jurisdiction to consider such evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did the Veterans Court exceed its jurisdiction by relying on extra-record affidavits? | Kyhn | Shinseki | Yes; the court violated record-based review limits |
| May the Veterans Court engage in first-instance fact finding using extra-record evidence? | Kyhn | Shinseki | No; fact-finding in first instance exceeded jurisdiction |
| Is the presumption of regularity applicable based on VA procedures when not in the Board record? | Kyhn | Shinseki | The court improperly applied presumption to extra-record findings |
Key Cases Cited
- Miley v. Principi, 366 F.3d 1343 (Fed. Cir. 2004) (presumption of VA duty to mail notification under 38 U.S.C. § 7105(b)(1))
- Butler v. Principi, 244 F.3d 1337 (Fed. Cir. 2001) (presumption of regularity in mailing VA notices)
- Deloach v. Shinseki, 704 F.3d 1370 (Fed. Cir. 2013) (limits on Veterans Court’s first-instance fact finding under § 7261)
- Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002) (fact-finding constraints in VA review)
- Murakami v. United States, 398 F.3d 1342 (Fed. Cir. 2005) (judicial notice standards and evidentiary considerations)
- In re Kahn, 441 F.3d 977 (Fed. Cir. 2006) (evidentiary considerations in federal practice)
- Godfrey v. Derwinski, 2 Vet.App. 352 (Vet. App. 1992) (prohibition on treating unauthenticated materials as authorities)
- Bazalo v. Brown, 9 Vet.App. 304 (Vet. App. 1996) (EAJA-related admissions of fees; relevance to extrarecord materials)
- Marsh v. Nicholson, 19 Vet.App. 381 (Vet. App. 2005) (presumption of regularity reviewed de novo as a legal question)
- D'Aries v. Peake, 22 Vet.App. 97 (Vet. App. 2008) (use of judicial notice and evidentiary materials in Vet.App)
- Johnson v. Shinseki, 23 Vet.App. 344 (Vet. App. 2010) (VA procedures and regularity considerations)