716 F.3d 572
Fed. Cir.2013Background
- Kyhn, a U.S. Army veteran (1945–1946), sought service connection for tinnitus after previously applying for hearing loss.
- The Board denied tinnitus; VA later denied again; Kyhn appealed to the Veterans Court, challenging reliance on affidavits not in the Board record.
- The Veterans Court applied a presumption of regularity based on affidavits about VA notice procedures and affirmed the Board denial.
- The affidavits were from VA employees and described an alleged regular mailing practice, but were not part of the Board record.
- Kyhn argued there was good cause for missing a scheduled VA examination due to lack of notice; the court found presumptions supported by the affidavits.
- The Federal Circuit vacated and remanded, holding the Veterans Court exceeded its jurisdiction by relying on extra-record evidence and engaging in first-instance fact-finding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Veterans Court erred by relying on extra-record affidavits | Kyhn argues Veterans Court relied on outside affidavits not in Board record. | Shinseki contends court may take judicial notice of regular procedures. | Vacated and remanded; extra-record reliance improper. |
| Whether the Veterans Court impermissibly engaged in first-instance fact finding | Kyhn contends court weighed affidavits to adjudicate facts not in record. | Shinseki contends presumptions of regularity were legal conclusions based on procedures. | Vacated and remanded; court exceeded jurisdiction by factual findings not from Board record. |
Key Cases Cited
- Deloach v. Shinseki, 704 F.3d 1370 (Fed. Cir. 2013) (limits Veterans Court to record and prohibits de novo facts)
- Miley v. Principi, 366 F.3d 1343 (Fed. Cir. 2004) (presumption of regularity for mailings to veterans)
- Butler v. Principi, 244 F.3d 1337 (Fed. Cir. 2001) (presumption of regularity for VA notice duties)
- Routen v. West, 142 F.3d 1434 (Fed. Cir. 1998) (presumption of regularity in VA procedures)
- Hensley v. West, 212 F.3d 1255 (Fed. Cir. 2000) (limits on VA factual review; remand standards)
- Andre v. Principi, 301 F.3d 1354 (Fed. Cir. 2002) (limits on de novo fact-finding by Veterans Court)
- Bazalo v. Brown, 9 Vet. App. 304 (Vet. App. 1996) (EAJA-related fees proceedings not substantive evidence)
- Bazolo v. West, 150 F.3d 1380 (Fed. Cir. 1998) (EAJA applicability to Veterans Court proceedings)
- Murakami v. United States, 398 F.3d 1342 (Fed. Cir. 2005) (evidence standards for judicial notice and evidentiary materials)