24 Vet. App. 228
Vet. App.2011Background
- Kyhn, a U.S. Army veteran, reopened a tinnitus claim in 2006 pursuant to a Board remand that directed a VA audiological exam.
- An audiology exam was scheduled for March 7, 2006, but Kyhn failed to attend; RO denied the tinnitus claim based on failure to report.
- The Board (May 17, 2007) denied service connection for tinnitus, citing absence of probative evidence linking tinnitus to service or a service-connected disability, and found VA’s duty to assist satisfied because an exam was scheduled.
- Kyhn argued: (a) Stegall violation for not providing a VA exam; (b) failure to give notice of the scheduled exam; (c) improper discounting of favorable evidence; (d) inadequate reasons or bases.
- The Court affirmed the Board, analyzing (i) presumption of regularity for notice, (ii) compliance with remand, (iii) the 3.655 denial framework, and (iv) lack of reasonably raised secondary aggravation claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Presumption of regularity and notice of exam | Kyhn asserts he did not receive notice of the March 2006 exam and seeks rebuttal of the regularity presumption. | Secretary contends VA followed a regular notice procedure; presumption applies and mailing is valid. | Presumption attached; Kyhn failed to rebut; notice was mailed per VA procedures. |
| Stegall remand compliance | Kyhn contends the January 2006 remand required a VA audiology exam that was not provided. | Board complied by arranging an exam; Kyhn’s failure to attend did not negate compliance. | Board complied with remand; failure to report does not defeat compliance. |
| 3.655 denial framework and proper disposition | Because Kyhn did not attend the exam, the claim should be denied under 38 C.F.R. § 3.655 rather than adjudicated on the merits. | Board properly denied on the merits, with § 3.655(b) providing for denial if the examination is not attended. | 3.655(b) required denial for reopened tinnitus; Board’s merits adjudication was not clearly erroneous and was nonprejudicial error. |
| Secondary service connection argument | Kyhn asserts the Board failed to consider tinnitus as secondary to service-connected bilateral hearing loss. | The issue was not reasonably raised; no basis to address aggravation. | Issue not addressed as not reasonably raised; no error in not considering secondary service connection. |
Key Cases Cited
- Marsh v. Nicholson, 19 Vet.App. 381 (2005) (presumption of regularity applies to mailing notices)
- Sthele v. Principi, 19 Vet.App. 11 (2004) (assessing regularity with multiple irregularities)
- Ashley v. Derwinski, 2 Vet.App. 307 (1992) (presumption of regularity standard and its limits)
- Butler v. Principi, 244 F.3d 1337 (2001) (presumption of regularity and attached records requirement)
- Dyment v. West, 13 Vet.App. 141 (1999) (substantial compliance standard for remands)
- Wood v. Derwinski, 1 Vet.App. 190 (1991) (duty to assist and examination considerations)
- Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004) (prejudice and error standards in VA claims)
- Sabonis v. Brown, 6 Vet.App. 426 (1994) (preclusion when law and not evidence is dispositive)
- Hilkerk v. West, 12 Vet.App. 145 (1999) (issues not reasonably raised need not be addressed)