Kyhn II: Why It Is Important to Attend Your C&P Examination

Attending Your C&P Examination

In Arnold C. Kyhn v. Eric K. Shinseki, Opinion Number 07-2349, decided January 18, 2011 is a new decision after a January 15, 2010 opinion which, affirmed a denial for service connection for tinnitus in large part because the veteran did not attend his Compensation and Pension Examination.

The new decision occurred after the veteran filed for reconsideration but largely upholds the original decision. While the case had multiple issues, it 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 were 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 sought to rely on the fact their was no written record of the letter sent to him by the VA notifying him of the examination. The Court asked the VA for further information regarding its procedures of providing notice of examinations and the VA provided two affidavits which the Court accepted to ascertain whether the VA had an established procedure for scheduling and notifying patients of examinations. The Court ultimately found the forms were presumed to have been sent and the presumption was not rebutted by the lack of letter in the file.

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. .

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