Kyhn: Presumption of Regularity in Mailing

Arnold C. Kyhn v. Eric K. Shinseki, Opinion Number 07-2349, decided October 22, 2013 concerns a Board decision finding against service-connection because the veteran did not attend a scheduled C&P examination.

The veteran claimed service-connection for tinnitus and presented evidence in the form of a private audiologist statement saying a history of noise exposure without benefit of ear protection was likely the beginning of the veteran’s tinnitus.  

The VA scheduled a C&P examination but he veteran did not attend.  The Board denied the claim saying the private medical record was of limited value because it was offered without the benefit of a review of the veteran’s claim folder. 

The veteran appealed saying he never received notice of a C&P examination.  The Court relied on supplemental affidavits from the VA and affirmed the Board decision based on a presumption of regularity that the examination notice was mailed.  However, the veteran again appealed to the Federal Circuit and the Federal Circuit found the CAVC acted beyond its jurisdiction by relying on affidavits not in the record before the Board and engaging in fact finding when the Court found the VA had a procedure to notify veterans of examinations.  The Federal Circuit explained the case was different from other instances where the presumption of regularity was premised upon independent legal authority rather than on evidentiary findings. 

The CAVC on review found the Board made factual findings about proper notifications when it stated “notification … was mailed to the veteran at his correct address of record and there is no indication that notice of this examination was returned by postal authorities as undeliverable.”  The CAVC found since the Board made factual findings on this issue it was obligated to provide adequate reasons and bases, and that the Board did not discuss the documents relied upon in making this finding and did not discuss whether this finding was based on a presumption of regularity.

The VA argued that the Board was not required to provide adequate reasons and bases on this issue because the veteran did not assert the issue to the Board.  The CAVC said under Maggitt it could address the issue.

The VA also argued that reliance on veteran’s argument he did not receive was itself reliance on extra record evidence.  But, the Court distinguished between evidence and argument and said “The Appellant’s assertion to the Court that he did not receive proper notification of the scheduled examination is not made for the purpose of having this Court make a factual finding that he did not receive notice of the examination.  Rather, he is making this assertion as part of a legal argument regarding whether the Secretary provided proper notification of the examination.”  Id. at *6.

This is an usual case which provides a blueprint to attack the presumption of regularity in the case of a missed appointment.

Decided by Judges Moorman, Schoelen and Greene.