Attending Your C&P Examination

Attending Your C&P Examination

The case of Arnold C. Kyhn v. Eric K. Shinseki, Opinion Number 07-2349, decided January 15, 2010, affirmed a denial for service connection for tinnitus in large part because the veteran did not attend his Compensation and Pension examination.

While their were multiple related issues, the case largely centered on the veteran’s failure to attend the scheduled Compensation and Pension examination. This failure served as the primary justification for the Board to deny his request for service connection.

The veteran appealed saying that he had not received notice. The Court grappled with the presumption of regularity. This presumption says the file and any required notices are presumed to be handled appropriately and sent unless there is a showing by the veteran of clear evidence to the contrary.

As clear evidence to defeat the presumption of regularity, the veteran argued their was no written record of the letter sent to him by the VA notifying him of the examination, that the VA had not competed an Appeal Certification Worksheet, and that the VA adjudicated his claim wrongly believing he had not submitted any evidence in support of his claim when in fact he had submitted evidence.

The Court first addressed the lack of a letter in the file and accepted the VA’s explanation that the file is electronically generated by a computer system and a hard copy is not generally placed in the claims file. The Court determined that because the VA does not as a regular practice include the notice in the claims file, the absence of it is not clear evidence that it was not sent. As an aside in the decision, the Court noted that it found persuasive the fact that the Supplemental Statement of the Case raised the fact the veteran did not attend the examination but that he did not at that point raise the lack of notice argument.

Regarding the Appeal Certification Worksheet, the Court found one did exist for the case when the case was initially appealed to the Board. The case had been appealed to and remanded by the Board and the veteran essentially argued a second Appeal Certification Worksheet should have been created and kept with the file when the veteran appealed to the Board for a second time. This is essentially a very technical argument that was rejected on a very technical ground, that the M21-1MR did not require a second Appeal Certification Worksheet but specifically contemplated that any further decision by the Regional Office would be entered into a “Remarks” section of the initial Appeal Certification Worksheet.

Finally, regarding evidence in support of his claim, the Court distinguished between his hearing loss and tinnitus claim. The evidence submitted was read to apply to the hearing loss and not the tinnitus claim, thus meaning that the Board was not incorrect when it stated their was no evidence from the veteran regarding the tinnitus claim.

In a final argument, the veteran argued that the tinnitus was secondary to or aggravated by the existing service-connected hearing loss. The Court rejected this argument without reaching the merits because they determined the veteran was raising this issue for the first time in his brief to the Court and had not raised it to the Board. This seems like a shift from what could have been a decision to remand this issue alone for the Board’s consideration and suggests that as an appellate court, the Court might be beginning to shift more responsibility to develop the case onto the veteran.

From this case, the most practical lesson is that attending Compensation and Pension examinations is very important and any notice problem should be raised immediately. Additionally, on a larger scale, the Court’s treatment of the aggravation issue affirms that a veteran should develop his case as fully as possible before the Board as the Court might not use the remand to allow for such development.

Decided by Chief Judge Greene, and Moorman and Schoelen, Judges.