UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

No. 07-2349

ARNOLD C. KYHN, APPELLANT,

V.

ERIC K. SHINSEKI,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Remand from the U.S. Court of Appeals for the Federal Circuit

(Decided October 22, 2013)

John S. Berry, Perry A. Pirsch, and Chad J. Wythers, all of Lincoln, Nebraska, were on the

pleadings for the appellant.

Will A. Gunn, General Counsel; David L. Quinn, Acting Assistant General Counsel; Richard

Mayerick, Deputy Assistant General Counsel; and James B. Cowden, all of Washington, D.C., were

on the pleadings for the appellee.

Before MOORMAN and SCHOELEN, Judges, and GREENE, Senior Judge.

PER CURIAM: Veteran Arnold C. Kyhn appeals, through counsel, a May17, 2007, decision

of the Board of Veterans' Appeals (Board) that denied his claim for VA service connection for

tinnitus. Record (R.) at 1-12. On January 18, 2011, the Court affirmed the Board's decision. Kyhn

v. Shinseki, 24 Vet.App. 228 (2011) (per curiam). Mr. Kyhn, through counsel, appealed to the U.S.

Court of Appeals for the Federal Circuit (Federal Circuit), which vacated this Court's decision and

remanded the matter on May 3, 2013. Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013). In light of

the Federal Circuit decision, the Court, by a single-judge decision, vacated the Board's decision and

remanded the claim to the Board on July 15, 2013. Kyhn v. Shinseki, No. 07-2349, 2013 WL

3718741, at *3 (Vet. App. July 15, 2013). On August 5, 2013, the Secretary filed a timely motion

for reconsideration or, in the alternative, a motion for panel decision.
The motion for decision by a panel will be granted. Afterreview of the parties' pleadings and

the record, the Court's single-judge July 15, 2013, decision will be withdrawn and this opinion will

be issued in its place. For the reasons set forth below, the Court will vacate the May 17, 2007, Board

decision and remand the matter for further proceedings consistent with this opinion.

I. FACTS

Mr. Kyhn served honorably in the U.S. Army from May 1945 to October 1946. In November

1999, a VA regional office (RO) granted service connection for bilateral hearing loss and assigned

a 50% disability rating but denied service connection for tinnitus. R. at 115. Mr. Kyhn did not

appeal the RO's denial of service connection for tinnitus. 

In January 2004, Mr. Kyhn sought to reopen his claim for service connection for tinnitus and

presented a letter from his 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." R. at 258. 

In January 2006, the Board determined that this 2004 statement from the board-certified

private audiologist constituted new and material evidence and, therefore, reopened Mr. Kyhn's claim. 

R. at 552. In the same decision, the Board remanded the claim so Mr. Kyhn could be given a VA

audiological examination "to ascertain the etiology and severity of any tinnitusthat may be present." 

R. at 552. On an internal VA record dated March 8, 2006, it is noted that an audiological

examination was "cancelled" because the veteran "failed to report." R. at 557. It also stated: 

"veteran failed to report on 3/7/06, notification was mailed to 2341 2nd Ave, Boelus, NE 68820. 

POA [(power of attorney)]/Berry was also notified." Id.; R. at 574-75 (Feb. 3, 2006, RO notation

requesting that VA medical facility schedule an audiological examination). A March 26, 2006,

Supplemental Statement of the Case noted that Mr. Kyhn "failed to report to the examination on

March 7, 2006," and that "the consequences of that refusal may result in the adjudication of the

matter based on the evidence of record under 38 [C.F.R. §] 3.655." R. at 580. The RO determined

that "service connection remains denied." R. at 581. 

The matter was returned to the Board and, in its May 17, 2007, decision, the Board denied

service connection for tinnitus after finding that the record contained no probative evidence that

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Mr. Kyhn's tinnitus was incurred in or causally related to service or aggravated by any serviceconnected disability. The Board determined that VA had complied with its duty to assist, pursuant

to 38 U.S.C. § 5103A, because a VA audiological examination was scheduled and "notification of

the examination was mailed to the veteran at his correct address of record." R. at 5. The Board

noted that, in accordance with § 3.655, "[w]hen, as here, entitlement to a VA benefit cannot be

established or confirmed without a current VA examination or reexamination and a claimant without

good cause, fails to report for such examination scheduled in conjunction with an original

compensation claim, the claim shall be rated on the evidence of record." 38 C.F.R. § 3.655 (2006). 

In considering the evidence of record, the Board assigned "limited probative value" to the January

2004 private medical evidence regarding Mr. Kyhn's tinnitus because "it was offered without the

benefit of a review of the veteran's claims folder." R. at 11. The Board also noted that "the years

long absence of evidence of notations of tinnitus constitutes negative evidence . . . ." R. at 10. 

Mr. Kyhn, through counsel, appealed to this Court, which issued a January15, 2010, decision

affirming the Board. Thereafter, the appellant filed a motion for reconsideration, and the Court

ordered supplemental briefing from the parties. In its January 2011 decision, the Court withdrew

its January 2010 decision and issued a new decision again affirming the Board. In its decision, the

Court addressed the appellant's contention, raised for the first time on appeal to this Court, that he

never received notice of the scheduling of the March 2006 VA audiological examination. Aug. 25,

2008, Appellant's Brief at 5-8. In so doing, the Court relied on two affidavits from VA employees

submitted to the Court by the Secretary as part of his supplemental briefing that contained

"information concerning the regular process by which VA notifies veterans of scheduled VA

examinations." Kyhn, 24 Vet.App. at 233. In holding that VA had a regular practice to provide

veterans with notice of their VA examinations, this Court relied on the affidavits. The Court then

applied the presumption of regularity to presume VA had properly mailed Mr. Kyhn notice of his

scheduled March 2006 audiological examination. Id. at 234. The Court went on to conclude that

the appellant's "claimed irregularities" did not constitute clear evidence to rebut the presumption of

regularity. Id. at 238. 

Mr. Kyhn then appealed to the Federal Circuit, which held that this Court acted beyond its

jurisdiction when it relied on the affidavits that were not in the record before the Board (i.e., "extra3
record evidence") and engaged in first-instance fact findingwhen this Court determined that VA had

an established procedure for notifying claimants of VA examinations. Kyhn, 716 F.3d at 577-78.

The Federal Circuit held that the affidavits in this case were "'evidentiary in nature' and may not be

considered in the first instance by the Veterans Court." Id. at 576. The Federal Circuit explained

that "[t]his case differs from other instances where the presumption of regularity was premised upon

independent legal authority rather than on evidentiary findings." Id. at 577. Because it found that

this Court had "exceeded its jurisdiction," the Federal Circuit vacated this Court's decision and

remanded the matter. Id. at 578.

II. ANALYSIS

In the May 2007 decision, the Board found that "notification of the examination 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." R. at 5. Thus, the Board

specifically made a factual finding about proper notification of the scheduled examination. Having

made such a finding, the Board was obligated to provide an adequate statement of the reasons or

bases for the finding. In rendering a decision, the Board is required to consider all evidence of record

and to consider, and discuss in its decision, all "potentially applicable" provisions of law and

regulation. Schafrath v. Derwinski, 1 Vet.App. 589, 592-93 (1991); see 38 U.S.C. § 7104(a). The

Board must provide a statement of the reasons or bases for its determinations, adequate to enable an

appellant to understand the precise basis for the Board's decision as well as to facilitate review in this

Court. 38 U.S.C. § 7104(d)(1); see Allday v. Brown, 7 Vet.App. 517, 527 (1995); Gilbert v.

Derwinski, 1 Vet.App. 49, 56-57 (1990). 

Here, the Board did not discuss the documents it relied on in making the finding that the

appellant was provided notification of the examination at his correct address and did not discuss

whether this finding was based on a presumption of regularity. Because the Board did not provide

an explanation for its finding, the Board's decision does not enable the appellant to understand the

basis of the Board's finding and frustrates judicial review. Accordingly, the Court will vacate the

Board decision and require the Board to support its finding that VA's notification duties were

fulfilled (i.e., notice of examination sent to correct address of record). If, on remand, the Board bases

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its finding on the presumption of regularity, the Board should explain in detail the regular and

established procedure that VA follows to schedule medical examinations and provide notice of the

scheduled examination to claimants.

The Court is not persuaded by the Secretary's argument in his motion for a panel decision that

the Board was not required to provide an adequate statement of reasons or bases for its notification

finding because the appellant did not assert nonreceipt of the notice of examination before the Board. 

See Aug. 5, 2013, Secretary's Motion for Panel Decision at 1-7. Specifically, he contends that

"[w]ithout even a bare assertion of non-receipt of notice of examination in the evidence before the

Board, there was no reason for the Board to have addressed the issue of the presumption of regularity

nor is there a factual basis for the Court to remand the issue for consideration in the first instance."

Id. at 5. In support of his position, the Secretary relies on Baxter v. Principi, 17 Vet.App. 407, 411

(2004), which he asserts the Court overlooked in making its decision.

Although the appellant raised for the first time on appeal here the issue whether he was

properly notified of the VA examination, the Court may entertain the newly raised argument. This

Court has discretion to consider issues that are raised for the first time on appeal. Maggitt v. West,

202 F.3d 1370, 1377-78 (Fed. Cir. 2000). The Court exercises its discretion and will not invoke the

exhaustion doctrine. See id. The Court may "use[] its authority to 'remand the matter, as

appropriate,' to the Board." Id. at 1378. The Board decision on appeal specifically made a factual

finding about proper notification of the scheduled examination, and the Board made such finding

even though the appellant did not raise that argument before the Board. A remand of the matter will

allow the Board to support its finding that VA's notification duties were fulfilled (i.e., notice of

examination was sent to the correct address of record) either by (1) by determining that VA properly

addressed and mailed the notice; or (2) by determining that VA is entitled to a presumption of

regularity in its mailing of notices of scheduled VA examinations. See McCormick v. Gober,

14 Vet.App. 39, 45 (2000) (holding that remand is appropriate where it would "likely benefit the

Court by producing 'a better record . . . for appellate review of the [Board's] decision'" (quoting

Maggitt, 202 F.3d at 1377)). Accordingly, the Court will vacate the Board decision and remand the

case for the Board to make the necessary factual findings related to whether Mr. Kyhn was properly

notified of the scheduled examination. 

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Although the Secretary correctly states that Baxter "holds that the Board need not examine

whetherthe presumption of regularity has been rebutted unless and until an appellant, at a minimum,

alleges that he did not receive the document in question," the Court here does not specifically direct

the Board to apply the presumption of regularity analysis or to consider only such presumption issue. 

Unlike Baxter, where the appellant, in his briefing on appeal to this Court "assiduously

avoided asserting that he never received notice of the 1970 RO decision denying his claim," Baxter,

17 Vet.App. at 410, Mr. Kyhn asserted on appeal that he never received notice of the scheduled VA

examination. Although the Secretary, in his principal brief, urged this Court not to address the

appellant's argument that he did not receive notice of the scheduled examination, the Secretary also

argued:

To the extent that the Court chooses to address Appellant's argument, the Secretary

asserts that the Court should apply the presumption of regularity to find that

Appellant did receive notice of the March 2006 VA examination. Further, Appellant

has failed to carry his burden of rebutting the presumption of regularity and as such

can not show that he had good cause for missing the examination.

Dec. 9, 2008, Secretary's Brief at 5-6. The Secretary's late attempt to argue waiver following the

Federal Circuit's remand is without merit. 

The Court also rejects the Secretary's contention that the Court cannot determine that the

Board's reasons for its notification findings are inadequate without acting outside its jurisdiction by

(1) considering "evidentiary," "extra record" assertions in the appellant's brief that he did not receive

notification of the examination and (2) making a factual finding that the appellant did not receive

such notification. The premise underlying the Secretary's argument is flawed. The Secretary fails

to recognize the distinction between evidence and argument. Evidence is defined as records,

documents, testimony, etc., that are offered in proof of an alleged fact. BLACK'S LAW DICTIONARY

555 (6th ed. 1990). An argument, on the other hand, is defined as "an effort to establish a belief by

a course of reasoning." BLACK'S at 107. 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. 

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Likewise, the Court neither weighs the probative value of the appellant's assertions normakes

factual findings regarding those assertions. As discussed above, this Court has jurisdiction to hear

arguments "presented to it in the first instance, provided it otherwise has jurisdiction over the

veteran's claim." Maggitt, 202 F.3d at 1377. It is within the Court's discretion to consider such

argument in the first instance, remand to the Board for its consideration of the issue, or simply

decline to consider the argument. Id. Here, the Court has determined that a remand to the Board is

warranted because the Board's reasons for its findings are inadequate. Additionally, the Court has

recognized that the notification issue may require the Board to engage in additional fact finding to

render a decision on this issue, particularly if the Board relies on the presumption of regularity to

support a finding that notification of the examination was made to the appellant.

On remand, the Board must apply current law, including this Court's decision in NievesRodriguez v. Shinseki, 22 Vet.App. 295, 303 (2008) ("the absence of claims file review by a private

medical expert does not categorically exclude the possibility that he is nevertheless informed of the

relevant facts"), and Horn v. Shinseki, 25 Vet.App. 231, 239 (2012) ("when assessing a claim, the

Board may not consider the absence of evidence as substantive negative evidence"), as appropriate. 

On remand, the appellant is free to submit additional evidence and argument, including the

arguments raised in his briefs to this Court, in accordance with Kutscherousky v. West, 12 Vet.App.

369, 372-73 (1999) (per curiam order), and the Board must consider any such evidence or argument

submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Board shall proceed

expeditiously, in accordance with 38 U.S.C. §§ 5109B, 7112 (requiring the Secretary to provide for

"expeditious treatment" of claims remanded by the Board or the Court).

III. CONCLUSION

Upon consideration of the foregoing analysis, the record on appeal, and the parties' pleadings,

the Secretary's motion for a panel decision is granted, the Court's July 15, 2013, single-judge

memorandum decision is WITHDRAWN, and this opinion is issued in its stead. The May 17, 2007,

Board decision is VACATED, and the claim for entitlement to service connection for tinnitus is

REMANDED for further adjudication consistent with this opinion. 

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