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 

______________________ 

PERRY A. PIRSCH, Berry Law Firm, PC, of Lincoln, 

Nebraska, argued for the claimant-appellant. Of counsel 

was JEANNE A. BURKE, of Omaha, Nebraska. 

STEVEN M. MAGER, 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 STUART 

F. DELERY, Acting Assistant Attorney General, JEANNE E.

DAVIDSON, Director, and TODD M. HUGHES, Deputy 

Director. Of counsel on the brief were MICHAEL J.
 KYHN v. SHINSEKI 2

TIMINSKI, Deputy Assistant General Counsel, and 

Jonathan E. Taylor, Attorney, United States Department 

of Veteran Affairs, of Washington, DC. 

______________________ 

Before RADER, Chief Judge, LOURIE, AND WALLACH, Circuit 

Judges. 

Opinion for the court filed by Circuit Judge WALLACH. 

Dissenting opinion filed by Circuit Judge LOURIE. 

WALLACH, 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 rely on this extra-record evidence, we 

vacate and remand. 

BACKGROUND

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 Affairs (“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 attributable 

to his military service. Mr. Kyhn also asserted in his 

NOD that 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 

this decision and it became final.

In January 2004, Mr. Kyhn sought to reopen his 

tinnitus claim, and presented another letter from his 
 KYHN v. SHINSEKI 3

private audiologist stating that Mr. Kyhn’s “history of 

noise exposure while in the military, without the benefit 

of hearing protection, . . . 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 to 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, 

24 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 (“VAMC”) 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 Veterans 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. 

Having 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 extra-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. 

DISCUSSION

This court’s jurisdiction to review decisions of the 

Veterans Court is limited 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, 1212 
 KYHN 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 reviews 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.” Garrison 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 an underlying factual finding by the Board, the 

Veterans Court both exceeds its jurisdiction to “review” 

the Board’s decision 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 the 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 established 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 The 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 DORLAND’S ILLUSTRATED

MEDICAL DICTIONARY 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 letters must be generated by the scheduling 

clerk, but later says the letters are “automatically 

generated.” J.A.88–89. Nor does she testify to the regular 

procedure for mailing the letters, 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 similar 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, may 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 Veterans 

 
 KYHN 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 Court 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 halfformed 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 

waiver 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. The Veterans Court explained this was not an 

impermissible finding of fact, because it considered the 

affidavits solely “[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 other 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 their 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 mail 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” in the first instance. Deloach, 704 

F.3d at 1380. The Veterans Court’s application of the 

presumption of regularity to 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 this presumption is a rule of law, its application 

is triggered by the preliminary factual findings that the 

 
 KYHN v. SHINSEKI 11

To the contrary, the Veterans Court’s fact finding in the 

first instance exceeded its jurisdiction to review the Board 

based on the record before the Board. See id.

CONCLUSION

The Veterans Court improperly relied upon extrarecord evidence to make a finding of fact in the first 

instance, and, in so doing, acted outside its statutorilygranted 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 interests of 

judicial economy cannot enlarge that which a statute 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 

the 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 301–07 (2d ed. 1997); McCormick on 

Evidence § 342, at 450 (John W. Strong ed., 4th ed. 1992)) 

(explaining that “predicate evidence” must be established 

before 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 fact 

 
 KYHN 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 No. 07-2349.

______________________ 

LOURIE, Circuit Judge, dissenting.

I respectfully dissent from the majority’s decision to 

vacate and remand the decision of the United States 

Court of Appeals for Veterans Claims (“Veterans Court”) 

affirming 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 the Veterans Court 

did not err in requesting information from the Department of Veterans Affairs (“VA”) concerning its practice of 

scheduling and notifying veterans of medical examinations and also did not err in determining, based on the 
2 KYHN v. SHINSEKI

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 before 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 argument 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 inquiry that were not “on the record of the proceedings 

before the Secretary and Board” under § 7252(b), including 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 affidavits to establish facts that were not relevant 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 jurisdictions.”); 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 affidavits in resolving jurisdictional disputes. 

Clark v. Principi, 15 Vet. App. 61, 62 (2001); Timberlake 

v. Gober, 14 Vet. App. 122, 132 (2000). The Veterans 
 KYHN v. SHINSEKI 3

Court has also reviewed evidence not in the record to 

resolve motions for attorney’s fees. E.g., Bazalo v. Brown, 

9 Vet. App. 304 (1996) (en banc), rev’d on other grounds,

Bazolo v. West, 150 F.3d 1380 (Fed. Cir. 1998). 

The Veterans Court likewise could have, if it needed 

to, taken judicial notice of VA procedures found in manuals existing at the VA prior 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 government for not filing affidavits of VA personnel to support 

an argument on the regularity of practice, Posey v. 

Shinseki, 23 Vet. App. 406, 410 (2010) (“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 remailed 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 foundation of any presumption of regularity is a showing, by affidavit or otherwise, 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 presumption of regularity attaches. The affidavits in this 

circumstance were properly used to establish that presumption, not to establish the fact that Kyhn had been 

notified. In the limited circumstance where a VA procedure needs to be established, I believe that the Veterans 

Court can take judicial notice of VA procedures based on 
4 KYHN v. SHINSEKI

affidavits provided by the VA that are not subject to 

reasonable dispute. 

The majority relies on apparent inconsistencies in the 

affidavits to argue that the Veterans Court cannot take 

judicial notice of their contents. Majority Op. at 7 n.5 

These arguments were not raised by Kyhn before the 

Veterans Court. Indeed, Kyhn, in moving for reconsideration, did not challenge the substance of those affidavits, 

only the procedure by which they were considered. Regardless, the alleged inconsistencies, such as whether the 

letter is generated and addressed automatically or manually and the number of days before mailing, are not controlling. Such a level of 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 procedure. 

Second, section 7261(c) is irrelevant here because 

there was no finding of fact by the Board that the Veterans 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 appeal 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 

§ 7261(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 circumstances, 

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 appropriate 
 KYHN v. SHINSEKI 5

standard of review, because the VA made no fact-finding, 

I believe that § 7261(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 regularity applies is not a finding of fact at all, and thus 

§ 7261(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 Eschevarria-North v. Shinseki, 437 F. App’x 941, 946–47 (Fed. Cir. 

2011) (unpublished) (stating that the question of the 

presumption 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 application of law to fact, then we cannot review that determination, including the supposed conflicting contents of any 

affidavits, as it is beyond our jurisdiction. See id. 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 issues raised by Kyhn, I would also agree with the Veterans 

Court that Kyhn was not deprived 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 entities. 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 notified 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 appear, 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 that 
6 KYHN v. SHINSEKI

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 procedure. 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 opportunities afforded him and thus was not deprived of due 

process.

Finally, I recognize that in some circumstances the 

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 Board 

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 establish only the existence of a regular practice that would 

ultimately still be subject to de novo review by the Veterans Court under existing precedent. 

To reverse would likely cause a remand to the Board 

to determine its own practice in the first instance. Because 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 wasteful process.

For the foregoing reasons, I respectfully dissent from 

the majority’s decision reversing and remanding the 

decision of the Veterans Court.