# United States Court of Appeals **for the Federal Circuit**

______________________

ARNOLD C. KYHN,
Claimant

- Appellant

,

v.

Eric K. Shinseki, SECRETARY OF VETERANS AFFAIRS, Respondent

- Appellee

.

______________________

2012

- 7003

______________________

Appeal from the United States Court of Appeals for
Veterans Claims in Case No. 07

- 2349.

______________________

Decided: May 3, 2013

______________________

P ERRY A. P IRSCH , Berry Law Firm, PC, of Lincoln, Nebraska, argued for the claimant

- app ellant. Of counsel

was J EANNE A. B URKE , of Omaha, Nebraska.

S TEVEN M. M AGER , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent -appellee. With him on the brief were S TUART F. D ELERY , Acting Assistant Attorney General, J EANNE E.
D AVIDSON , Director, and T ODD M. H UGHES , Deputy
Director. Of counsel on the brief were M ICHAEL J.KYHN v. SHINSEKI 2

T IMINSKI , Deputy Assistant General Counsel, and Jonathan E. Taylor, Attorney, United States Department of Veteran Affairs, of Washington, DC.

______________________

Before R ADER

, Chief Judge

, L OURIE

, AND W ALLACH

, Circuit Judges

. Opinion for the court filed by Circuit Judge W ALLACH

. Dissenti ng opinion filed by Circuit Judge L OURIE

.
W ALLACH

, Circuit Judge

. Arnold C. Kyhn appeals from the decision of the United States Court of Appeals for Veterans Claims (“Veterans Court”) affirming the Board of Veterans’ Appeals ’ (“Board”) denial of Mr. Kyhn’s tinnitus claim. Kyhn v. Shinseki , 24 Vet. App. 228 (2011) (“ Kyhn II ”). In particular, Mr. Kyhn challenges the Veterans Court’s reliance on affidavits that were not part of the record before the Board. Because the Veterans Court lacked jurisdiction to re ly on this extra

- record evidence, we vacate and remand

. B ACKGROUND

Mr. Kyhn served in the United States Army from May
1945 to October 1946. In February 1998, he filed a claim
for service

- connected hearing loss, which was denied by
the Veterans Affair s (“VA”) regional office (“RO”). Mr. Kyhn submitted a Notice of Disagreement (“NOD”), accompanied by medical evidence from his private audiologist that he suffered from hearing loss attrib utable to his military service. Mr. Kyhn also asserted in his
NOD th at he was seeking service connection for tinnitus. After various proceedings, the RO granted service connection for hearing loss at a 50% rating, but denied
service connection for tinnitus. Mr. Kyhn did not appeal
thi s decision and it became final.

In January 2004, Mr. Kyhn sought to reopen his tinnitus claim, and presented another letter from hisKYHN v. SHINSEKI 3

private audiologist stating that Mr. Kyhn’s “history of noise exposure while in the military, without the benefit of hearing pro tection, . . . is quite likely .

. . the beginning of [his] hearing loss and tinnitus.” Kyhn II , 24 Vet. App.

at 231 . Although the RO declined to reopen the tinnitus claim, the Board found the private audiologist’s statement
constituted new and material evidence and remanded to
the RO t o afford Mr. Kyhn a VA examination to “ascertain the etiology and severity of any tinnitus that may be present.” Id. The RO scheduled an examination for March 7, 2006, but Mr. Kyhn failed to attend. Not long after, the Board denied service connection for tinnitus,
based on the evidence of record

. 1 Mr. Kyhn appealed to
the Veterans Court.

Before the Veterans Court, Mr. Kyhn argued, inter
alia , that there was good cause for his failure to attend the VA examination because the VA failed to provide him
with notice of when it was scheduled

. The Veterans Court applied the presumption of regularity to presume that Mr. Kyhn had received notice of the examination, and
affirmed the Board’s denial of service connection.

To determine whether the presumption of regularity applied , the Veterans Court ordered the Secretary of Veterans Affairs (“Secretary”) to provide the court with “information concerning the regular process by which VA
notifies veterans of scheduled VA examinations.” Kyhn II

, 2 4 Vet. App. at 233

. The Secretary complied and submitted two affidavits from VA employees, only one of whom professed personal knowledge of the regular

1 The Board explained that when a veteran fails to attend a scheduled examination, “the claim shall be rated
on the evidence of record.” In re Kyhn , No. 99

- 21

- 607, slip op. at 5 (Bd. Vet. App. May 17, 2007) (citing 38 C.F.R. § 3.655).KYHN v. SHINSEKI 4

practice for mailing such notice to veterans. 2 Jo Ellen Bash, a manager at the VA Medical Center (“VAM C”) in Omaha, Nebraska

, stated that a scheduling clerk typically provided a veteran with notice of his VA examination by “electronically generat[ing] a letter to the
veteran” from the Automated Medical Information Exchange system. J.A.88

. Relying on this evidence, the Veterans Court found the VA had a regular practice to provide veterans with
notice of their VA examinations and applied the presumption of regularity to presume the VA had properly notified Mr. Kyhn in accordance with this practice. 3 The Ve terans Court further held that the absence of a copy of notice in Mr. Kyhn’s claims file and prior irregularities in processing his claim did not “constitute clear evidence to rebut the presumption of regularity . . . .” Kyhn II , 24 Vet. App. at 236.

H aving presumed that notice of the examination was mailed to Mr. Kyhn, the Veterans Court affirmed the
Board’s denial of Mr. Kyhn’s tinnitus claim

. Id. at 238

. Mr. Kyhn then moved for rehearing and full court review

,

2 The other employee , Margaret Bunde stated that the VA Medical Center, rather than the RO, was tasked with mailing the veteran notice of an examination. J.A.100. However, as an employee of the RO and not the VAMC, Ms. Bunde was unable to describe how the VAMC
mailed notice to veterans.

3 The Veterans Court decision discussed herein was issued on January 18, 2011, Kyhn II , 24 Vet. App. at 228, after panel reconsideration of an earlier decision issued on January 15, 2010

, Kyhn v. Shinseki , 23 Vet. App. 335 (2010) (“ Kyhn I ”) . Both Kyhn I and Kyhn II affirmed the Board decision and are similar in most respects, except
that Kyhn II more fully explains the basis for admitting
the affidavits and applying the presumption of regularity.KYHN v. SHINSEKI 5

arguing that the panel’s reliance on ex tra

- record evidence was an improper departure from Veterans Court precedent. The motion for rehearing was denied. However, Chief Judge Kasold and Judge Hagel dissented from the denial, on the ground that the full court should
decide the Veterans Court’s authority to “obtain and consider evidence not in the record before the agency to
resolve a non

- jurisdictional issue.” Kyhn v. Shinseki , 2011 U.S. App. Vet. Claims LEXIS 1566, *1

– 2 (Vet. App. July 25, 2011) . Mr. Kyhn filed this timely appeal.

D ISCUSSIO N

This court’s jurisdiction to review decisions of the
Veterans Court is limi ted by statute. Pursuant to

38 U.S.C. § 7292(a), this court has jurisdiction to review “the validity of a decision of the [Veterans] Court on a rule of law or of any statute or regulation . . . or any interpretation thereof (other than a determination as to a factual matter) that was relied on by the [Veterans] Court in making the decision.” Except to the extent that a constitutional issue is presented, this court may not
review “a challenge to a factual determination,” or “a challenge to a law or regulation as applied to the facts of a particular case.” 38 U.S.C. § 7292(d)(2). The Veterans Court’s legal determinations are reviewed de novo

. Cushman v. Shinseki , 576 F.3d 1290, 1296 (Fed. Cir. 2009). Mr. Kyhn’s appeal raises the legal question of whether the Veterans Court acted beyond its jurisdiction
when it relied on evidence not in the record before the Board and engaged in first

- instance fact finding. See
Winters v. Gober

, 219 F.3d 1375, 1379 (Fed. Cir. 2000) (reviewing the legal issue of whether the Veterans Court exceeded its statutory authority).

The Veterans Court has jurisdiction “ to review
decisions of the Board

. . . on the record of the proceedings
before the Secretary and the Board. ” 38 U. S.C. § 7252(a), (b); see also Henderson v. Shinseki , 589 F.3d 1201, 1212KYHN v. SHINSEKI 6

(Fed. Cir. 2009) rev’d and remanded on other grounds sub
nom Henderson ex rel. Henderson v. Shinseki , 131 S. Ct. 1197 (2011) (“[T]he Veterans Court revi ews each case that
comes before it on a record that is limited to the record developed before the RO and the Board.”). The Veterans Court’s jurisdiction to review the Board is further “limited to the scope provided in section 7261 of [Title 38] .” 38
U.S.C . § 7252 (b) . Section 7261 allows the Veterans Court to review “questions of law de novo, questions of fact for clear error, and certain other issues under the ‘arbitrary, capricious, abuse of discretion, not otherwise in
accordance with law’ standard.” Ga rrison v. Nicholson

, 494 F.3d 1366, 1368 (Fed. Cir. 2007) (quoting 38 U.S.C. § 7261(a)). Moreover, section 7261(c) makes clear that “ [i]n no event shall findings of fact made by the Secretary or the Board . . . be subject to trial de novo by the [Veterans ]
Court .” 38 U.S.C. § 7261(c). This subsection “ prohibits the Veterans Court from making factual findings in the
first instance.” 4 Andre v. Principi , 301 F.3d 1354, 1362 (Fed. Cir. 2002).

1. The Veterans Court Considered Evidence That Was
Not In the Record Before the Board

In this case, the Veterans Court’s decision denying relief for Mr. Kyhn relied upon affidavits from two VA employees, neither of which was in the record before the
Board. Such reliance on extra

- record evidence was in

4 Contrary to the dissent’s position, section 7261 is relevant here even though the Board made no underlying finding of fact

. By making an independent finding of fact
absent a n underlying factual finding by the Board, the Veterans Court both exceeds its jurisdiction to “review”
the Board’s de cision under § 7252 and impermissibly engages in first

- instance fact finding barred by § 7261.
See Deloach v. Shinseki , 704 F.3d 1370, 1380 (Fed. Cir. 2013).KYHN v. SHINSEKI 7

contravention of th e jurisdictional requirement that “[r]eview in the [Veterans] Court shall be on the record of proceedings before the Secretary and the Board.” 38 U.S.C. § 7252(b).

On appeal, the Secretary argues that such reliance was permissible because “ [i]t is well es tablished that
courts have discretion to take judicial notice of matters outside the record.” Secretary’s Br. at 18 (citing Fed. R. Evid. 201)

. However, to the extent the Secretary relies on Fed. R. Evid. 201 as authority for the Veterans Court’s otherwise impermissible consideration of extra

- record evidence, that reliance is misplaced. 5 T he affidavits in this case were from a party’s employees regarding
otherwise unknown internal procedures. Such evidence is neither “generally known” nor “from sources whose accuracy cannot reasonably be questioned.” 6 Fed. R. Evid.

5 Although the Federal Rules of Evidence are not generally applicable to the Veterans Court, the Veterans Court has relied on Fed. R. Civ. P. 201 in the past as justification for its consideration of extra

- record
materials. See

, e.g. , D 'Aries v. Peake , 22 Vet. App. 97, 105 (2008) (relying on Fed. R. Evid. 201(b) as authority to take judicial notice of a fact in D ORLAND’S I LLUSTRATED M EDICAL D ICTIONARY 1285 (31st ed. 2007), specifically, that “neurology is the medical specialty that deals with the nervous system”).

6 Certain inconsistencies in Ms. Bash’s affidavit confirm that her testimony was neither “generally known” nor from a source “whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201. For instance, she says the
notification letter s must be generated by the scheduling clerk, but later says the letter s are “automatical ly

gene rated.” J.A.88

– 89. Nor does she testify to the regular procedure for mailing the letter s , including whether address information is input manually or automatically or the number of business days before a letter is mailed.KYHN v. SHINSEKI 8

201. Thus, they are not the “kinds of facts that may be judicially noticed.” Id. (heading format modified); see also
Murakami v. United States , 398 F.3d 1342, 1355 (Fed. Cir. 2005); In re Kahn , 441 F.3d 977, 990 (Fed. Cir. 2006).
Nor , as the Secretary contends, are the affidavits of a party’s employees similar to authorities such as VA
manuals. See Kyhn II , 24 Vet. App. at 234 (“[ W]hile VA has a written procedure for scheduling examinations that is set forth in its manuals, it does not have written instructions regarding the procedures it follows to notify a claimant of a scheduled examination.”). The Veterans
Court has rejected s imilar arguments in the past: “[The]
characterization of the aforementioned materials as ‘authorities’ does not magically transform their status in this appeal. All of appellant’s proffered supplementary materials are evidentiary in nature and, as such, ma y not come in through the back door by way of citation as ‘supplemental authorities.’” Godfrey v. Derwinski , 2 Vet. App. 352, 355 (1992) (excluding television news program transcripts because “[t]hey obviously do not constitute legal authority; nor do they provide a description of ‘facts not subject to reasonable dispute,’” and thus they “may not be considered in the first instance by the [Veterans] Court”) (internal citations omitted). The affidavits in this case are similarly “evidentiary in nature” and may not be considered in the first instance by the Veterans Court. 7

Nevertheless, she states that Mr. Kyhn’s notice letter
“would have been mailed out to his address of record on February 11 or 12, 2006

. ” J.A.89.

7 Contrary to the dissent’s analysis, Dissenting Op.

at 2– 3, the Veterans Court’s practice of admitting applications for attorney’s fees is premised on independent statutory authority in the Equal Access to Justice Act (“EAJA”) and is thus inapposite to its reliance

on extra

- record affidavits in this case. See 28 U.S.C. § 2412 (providing independent authority for the VeteransKYHN v. SHINSEKI 9

The Secretary also argues that the Veterans Court’s reliance on the newly

- submitted evidence was permissible because “[i]t was Mr. Kyhn who prompted the Veterans Court’s inquiry into VA’s procedure by asserting, for the first time, before the Veterans Court that he had not
received notice of the scheduled March 2006 VA
examination . . . .” Secretary’s Br. at 15. If true, the fact that Mr. Kyhn failed to previously raise his lack of notice argument would be relevant to whether he waived that argument before the Veterans Court, 8 but would not
authorize the Veterans Court to act outside the bounds of its jurisdiction by relying on extra

- record evidence

. Cf. Ins. Corp. of Ir., Ltd. v. Compagnie des Bauxites de
Guinee , 456 U.S. 694, 702 (1982) (“[N]o action of the parties can confer subject

- matter jurisdiction upon a federal court.”). Thus, the Veterans Court’s reliance on
Ms. Bunde’s and Ms. Bash’s affidavits exceeded the Veterans Court’s limited jurisdiction to review the Board’s decision based upon the record before the Board. See 38 U.S.C. § 7252(b).

2. The Veterans C ourt Improperly Engaged in Fact Finding in the First Instance

The Veterans Court further erred by relying on the

extra

- record evidence to make a finding of fact in the first

Court’s admission and consideration of “an application for fees and other expenses.”); see also Bazalo v. Brown , 9 Vet. App. 304, 307

– 308 (1996) rev’d on other grounds,
Bazolo v. West , 150 F.3d 1380 (Fed. Cir. 1998) (noting a statutory amendment making “the EAJA applicable to [the Veterans] Court”).

8 The Veterans Court’s decision contains a half

formed waiver analysis, but does not rely upon waiver as
an alternative basis for its holding. Kyhn II , 24 Vet. App.

at 235

– 236. On appeal, the Secretary does not argue
waive r as an alternative basis for affirmance.KYHN v. SHINSEKI 10

instance. See Deloach v. Shinseki

, 704 F.3d 1370, 1380 (Fed. Cir. 2013) (citing Andre , 301 F.3d at 1362). In particular, the court found the affidavits proved “that VA does have an established procedure for notifying claimants of [VA] examinations.” Kyhn II , 24 Vet. App. at

234. T he Veterans Court explained this was not an impermissible finding of fact, because it considered the
affidavits solel y “[a]s part of the de novo process for determining whether the presumption of regularity
attaches . . . .” Id. at 233

– 234. However, this rationale does not transform the Veterans Court’s factual finding into a legal conclusion.

This case differs from oth er instances where the presumption of regularity was premised upon independent legal authority rather than on evidentiary findings. See

, e.g. , Miley v. Principi , 366 F.3d 1343, 1346

– 47 (Fed. Cir. 2004) (presuming that VA officials acted consistently with t heir legal duty under 38 U.S.C. § 7105(b)(1) to mail the veteran notification of a rating decision); Butler v. Principi , 244 F.3d 1337, 1340

– 41 (Fed. Cir. 2001) (presuming VA officials acted consistently with their legal duty under 38 U.S.C. § 5104(a) to m ail the veteran notice of appeal rights). Here, the Veterans Court weighed the affidavits to find that the VA had a regular practice of providing notice of VA examinations. This finding improperly resulted from the “evaluation and weighing of evidence” i n the first instance. Deloach , 704
F.3d at 1380. The Veterans Court’s application of the presumption of regularity t o this factual finding does not convert the underlying finding into a legal conclusion

. 9

9 An analogy may be helpful. There is a rebuttable presumption that a properly

- addressed and
mailed letter has reached its destination. Rios v.
Nicholson , 490 F.3d 928, 930

– 31 (Fed. Cir. 2007). Although th is presumption is a rule of law, its application
is triggered by the preliminary factual findings that theKYHN v. SHINSEKI 11

To the contrary, the Veterans Court’s fact findin g in the first instance exceeded its jurisdiction to review the Board
based on the record before the Board. See id.

C ONCLUSION

T he Veterans Court improperly relied upon extra

record evidence to make a finding of fact in the first instance, and, in so doing, acted outside its statutorily

granted jurisdiction to review the Board’s decision based upon the record before the Board. The dissent may be
correct that undertaking the proper procedure in this case
would ultimately result in the same outcome and “only further delay the proceedings.” Dissenting Op. at 6. Nevertheless, Congress vested the Veterans Court with limited jurisdiction, and even the weighty inte rests of judicial economy cannot enlarge that which a statut e has directly limited. 10 Because the Veterans Court exceeded

letter was properly addressed and mailed. Likewise, the presumption that VA officials properly sent Mr. Kyhn
notice of his examination was based on the Veterans Court’s preliminary finding, based on the affidavits, that

t he VA had a regular practice of providing notice of VA
examinations. Cf. Routen v. West , 142 F.3d 1434, 1440 (Fed. Cir. 1998) (citing Weinstein’s Federal Evidence § 301.02[1], at 301 –0 7 (2d ed. 1997); McCormick on
Evidence § 342, at 450 (John W. Strong ed., 4th ed. 1992)) (explaining that “predicate evidence” must be established
bef ore a presumption is triggered).

10 Although the dissent is concerned that reversal
in this case could “set a standard” requiring repeated remands to the Board for factual finding, Dissenting Op.

at 6 , this opinion only requires that the Veterans Court
follow the law confining its jurisdiction. Past decisions of this court have required the same. See

, e.g. , Hensley v.
West

, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (holding the Veterans Court lacked jurisdiction to engage in factKYHN v. SHINSEKI 12

its jurisdiction in deciding this case, its decision is vacated
and remanded. 11

VACATE AND REMAND

finding in the first instance, and explaining that remand to the Board was required if there was “insufficient factual development of the record”).

11 Having granted Mr. Kyhn’s requested relief, we
need not decide his additional arguments that the
Veterans Court’s reliance on extra

- record evidence violated his due process rights and right to two administrative reviews.

# United States **Court of Appeals**  **for the Federal Circuit**

______________________

ARNOLD C. KYHN,
Claimant

- Appellant

,

v.

Eric K. Shinseki, SECRETARY OF VETERANS AFFAIRS, Respondent

- Appellee

.

______________________

2012

- 7003

______________________

Appeal from the United States Court of Appeals
for Veterans Claims in N o. 07

- 2349.

______________________

L OURIE

, Circuit Judge , dissenting.

I respectfully dissent from the m ajority’s decision to
vacate and remand the decision of the United States
Court of Appeals for Veterans Claims (“Veterans Court”)
affirm ing the decision of the Board of Veterans’ Appeals (“Board”) holding that Kyhn lacked service connection for
tinnitus. Kyhn v. Shinseki , 24 Vet. App. 228 (2011) (“Kyhn II”). Because I believe that t he Veterans Court
did not err in requesting information from the Depar tment of Veterans Affairs (“VA”) concerning its practice of scheduling and notifying veterans of medical examin ations and also did not err in determining, based on theKYHN v. SHINSEKI 2

VA’s response, that Kyhn was presumed to have received
that notice

, I would affirm

.
Under 38 U.S.C. § 7252, the Veterans Court is vested with the authority “to review decisions of the Board of Veterans’ Appeals ” and such review “shall be on the record of the proceedings bef ore the Secretary and the Board.” Section 7261(c) also states that “[i]n no event shall findings of fact made by the Secretary or the Board of Veterans’ Appeals be subject to trial de novo by the
Court.” 38 U.S.C. § 7261(c). In my view, Kyhn’s arg ument that the Veterans Court violated these provisions fails because neither of these provisions applies to the
circumstances of this case. There was no finding of fact
tried de novo by the Veteran’s Court.

First

, I note preliminarily that the Veterans Court’s determination that the VA has a regular process for providing notice of scheduled examinations is not barred by § 7252(b). The Veterans Court has jurisdiction over a number of areas of seemingly first

- instance factual i nquiry that were not “on the record of the proceedings before the Secretary and Board” under § 7252(b) , inclu ding determining both the regularity of procedure and relying on outside affidavits not in the record.

For example, the Veterans Court has taken judicial
notice of affidavit s to establish facts that were not rel evant at the Board level. Fed. R. Evid. 201; see B.V.D. Licensing Corp. v. Body Action Design, Inc.

, 846 F.2d 727, 728 (Fed. Cir. 1988) (“Courts may take judicial notice of facts of universal notoriety, which need not be proved, and of whatever is generally known within their jurisdi ctions.”); Smith v. Derwinski , 1 Vet. App. 235, 238 (1991) (“Courts may take judicial notice of facts not subject to reasonable dispute.”). Further, the Veterans Court has
considered affida vits in resolving jurisdictional disputes. Clark v. Principi , 15 Vet. App. 61, 62 (2001); Timberlak e v. Gober , 14 Vet. App. 122, 132 (2000). The VeteransKYHN v. SHINSEKI 3

Court has also reviewed evidence not in the record to resolve motions for attorney’s fees. E.g., Ba zalo v. Brown

, 9 Vet. App. 304 (1996) (en banc)

, rev’d on other grounds,
Bazolo v. West , 150 F.3d 1380 (Fed. Cir. 1998)

.
T he Veterans Court likewise could have, if it needed to, taken judicial notice of VA procedures found in man uals existing at the VA pri or to the appeal. Johnson v.
Shinseki , 23 Vet. App. 344, 351 (2010); cf. Marsh , 19 Vet. App. at 386

– 87 (VA regulations relevant to establish VA procedure). Those procedures are not always set forth in published form, Johnson , 23 Vet. App. at 351; Smith v.
Shinseki , 24 Vet. App. 40, 46 (2010), and, indeed, prior opinions of the Veterans Court have faulted the gover nment for not filing affidavits of VA personnel to support an argument on the regularity of practice, Posey v.
Shinseki , 23 Vet. App. 406, 410 (2 010) (“At no time has the Secretary produced, or offered to produce, affidavits of VA personnel to support his argument that simply noting
on an internal document that a Board decision was re

mailed on a particular date plausibly demonstrates the
actual date the Board decision was re

- mailed, nor did he file any attachments with his brief demonstrating an established policy for the re

- mailing of Board decisions.”);

see Chabebe v. Shinseki , No. 09

- 0114, 2010 WL 3230804 ( Vet. App. Aug. 16, 2010) (“The foundati on of any pr esumption of regularity is a showing, by affidavit or othe rwise, what the regular procedure may be.”).

As with jurisdictional matters, evidence regarding regularity is not used to adjudicate the merits of a claim.
Such evidence is only used to establish whether a pr esumption of regularity attaches. The affi davits in this circumstance were properly used to establish that pr esumption, not to establish the fact that Kyhn had been notified. In the limited circumstance where a VA proc edure needs to be established, I believe that the Veterans Court can take judicial notice of VA procedures based onKYHN v. SHINSEKI 4

affidavits provided by the VA that are not subject to reasonable dispute.

The majority relies on apparent inconsistencies in the
affidavits to ar gue that the Veterans Court cannot take judicial notice of their contents. Majority Op. at 7 n.5
T hese arguments were not raised by Kyhn before the
Veterans Court . Indeed, Kyhn, in moving for reconsider ation, did not challenge the substance of those aff idavits, only the procedure by which the y were considered. R egardless, the alleged inconsistencies, such as whether the letter is generated and addressed automatically or man ually and the number of days before mailing

, are not co ntrolling. Such a level o f granularity is not significant . In this instance, the fact that the affidavits consistently note that a letter is generated, addressed according to the address on file, and then subsequently mailed is sufficient to establish the existence of the procedu re.

Second , section 7261(c) is irrelevant here because there was no finding of fact by the Board that the Vete rans Court reviewed de novo . The issue of the regular procedure of the VA only became relevant in response to a defense raised by Kyhn on appea l in the Veterans Court. Because it had not been raised below, the Board had no opportunity to engage in any findings of fact under § 7261(c) that could be subject to review by the Veterans
Court.

The case relied on by the majority for arguing that § 72 6 1(c) still applies despite the VA not engaging in any
fact

- finding, Deloach v. Shinseki , 704 F.3d 1370, 1380 (Fed. Cir. 2013), is inapposite as it does not discuss the presumption of regularity and ignores the circ umstances, previously discussed when the Veterans Court can and does engage in limited fact -related finding in the first instance, including in establishing the presumption of regularity. Even so, irrespective of the appropriateKYHN v. SHINSEKI 5

standard of review, because the VA made no fact

- finding,
I believe that § 72 6 1(c) was not violated.

Moreover, the long

- standing practice at the Veterans Court is to review the application of the presumption of regularity de novo as a matter of law. E.g.

, Marsh v.
Nicholson , 19 Vet. App. 381, 386 (2005). Under that standard, the question whether the presumption of reg ularity applies is not a finding of fact at all

, and thus § 726 1(c) would not apply even if the VA had addressed the presumption of regularity in the first instance

. There is, however, a disconnect between our case law and that of the Veterans Court on the applicable standard of review, which the majority attempts to reconcile. See Escheva rria

- North v. Shinseki , 437 F. App’x 941, 946

– 47 (Fed. Cir. 2011) (unpublished) (stating that the question of the

pr esumption of regularity is either a question of fact or the application of law to fact). If the applicability of the presumption of regularity is a question of fact or applic ation of law to fact, then we cannot review that determin ation , including the sup posed conflicting contents of any affidavits, as it is beyond our jurisdiction. See i d. But the question of the proper standard of review is not before us as the Board engaged in no actual fact

- finding.

While the majority does not reach the due process i ssues raised by Kyhn, I would also agree with the Veterans
Court that Kyhn was not de prived of due process . Both
the Board and the RO considered his claim for service connection for tinnitus, and Kyhn had the opportunity to
submit evidence before both e ntities. Kyhn, after being notified by the RO in 2006 that he failed to attend the VA examination, did not respond that he had not been not ified of the examination. Indeed, he did not offer any explanation for his failure to attend. Instead, in response to the RO’s denial of Kyhn’s claim after he failed to a ppear, Kyhn represented that he had no other information
to substantiate his claim and that he did not contest the notice of the examination. Kyhn did not even dispute thatKYHN v. SHINSEKI 6

the address the notice was mailed to was incorrect. Kyhn’s failure to take advantage of the opportunities at
the VA and at the Board is thus not a deprivation of agency review. See Nat’l Classification Comm

. v. United
States , 779 F.2d 687, 695 (D.C. Cir. 1985).

There is likewise no evidence that the Veterans Court denied Kyhn an opportunity to dispute the contents of the affidavits regarding the VA’s regular notification proc edure. Kyhn, in fact, did not dispute the accuracy of the affidavits at all in his supplemental briefing or offer any evidence to the contrary. Instead, he only opposed the propriety of the Board considering those affidavits. Again, Kyhn simply failed to take advantage of the oppo rtunities afforded him and thus was not deprived of due

process.
Finally, I recognize that in some circumstances t he
Veterans Court has remanded a case to the Board for
limited fact

- finding on non

- jurisdictional notice issues. E.g.

, Mayfield v. Nicholson , 20 Vet. App. 98, 99 (2006) (remanding for a factual determination by the Bo ard
whether the notice given to the veteran was sufficient). However, in this case, where the evidence is only relevant to establish as a matter of law the regular procedure of the VA, not the merits of the actual notice in a given claim, requiring such a remand would only further delay the proceedings, needlessly churning the system to esta blish only the existence of a regular practice that would ultimately still be subject to de novo review by the Vete rans Court under existing precedent

.
To reverse woul d likely cause a remand to the Board to determine its own practice in the first instance. B ecause waiver is rare at the pro

- claimant Veterans Court, a reversal could set a standard that newly raised defenses in the Veterans Court could repeatedly trigger remand to the Board and further delay resolution of proceedings.KYHN v. SHINSEKI 7

Judicial economy warrants against allowing such a wast eful process.

For the foregoing reasons, I respectfully dissent from
the m ajority ’s decision reversing and remanding the
decision of th e Veterans Court

.