Kyhn v. Shinseki

24 Vet. App. 228, 2011 U.S. Vet. App. LEXIS 84, 2011 WL 135820
CourtUnited States Court of Appeals for Veterans Claims
DecidedJanuary 18, 2011
DocketNo. 07-2349
StatusPublished
Cited by11 cases

This text of 24 Vet. App. 228 (Kyhn v. Shinseki) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Kyhn v. Shinseki, 24 Vet. App. 228, 2011 U.S. Vet. App. LEXIS 84, 2011 WL 135820 (Cal. 2011).

Opinion

PER CURIAM:

Veteran Arnold C. Kyhn appeals, through counsel, a May 17, 2007, decision of the Board of Veterans’ Appeals (Board) that denied his claim for VA service connection for tinnitus. Record (R.) at 1-12. Mr. Kyhn argues that (1) the Board failed to ensure compliance with its January 2006 remand instructions by failing to provide him with a VA audiological examination in violation of Stegall v. West, 11 Vet.App. 268, 270-71 (1998); (2) VA failed to provide him notice of his scheduled audiological examination; (3) the Board erred by improperly discounting evidence favorable to his tinnitus claim; and (4) the Board failed to provide an adequate statement of reasons or bases for its decision. The Secretary argues for affirmance of the May 2007 Board decision, asserting that (1) VA complied with the January 2006 Board remand instructions because the evidence of record demonstrates that a VA [231]*231audiological examination was scheduled; (2) the presumption of regularity attaches to the notice of the examination and Mr. Kyhn has failed to rebut that presumption; and (B) the Board properly denied service connection because Mr. Kyhn failed to attend his scheduled VA examination.

In an opinion issued on January 15, 2010, the Court affirmed the Board decision. On February 5, 2010, the appellant moved for reconsideration or, in the alternative, full-Court consideration. Kyhn v. Shinseki, 28 Vet.App. 335 (2010). The panel ordered the parties to submit supplemental memoranda. After review of these memoranda, the parties’ other briefs, and the record, the Court’s January 15, 2010, opinion is withdrawn and this opinion is issued in its place. For the reasons set forth below, the Court will affirm the May 17, 2007, Board decision.

I. BACKGROUND

Mr. Kyhn served honorably in the U.S. Army from May 1945 to October 1946. R. at 17. In February 1998, he claimed service connection for hearing loss, which a VA regional office (RO) denied as not well grounded. R. at 87-89. In May 1999, Mr. Kyhn submitted a Notice of Disagreement (NOD) along with medical evidence from a private audiologist, Craig A. Foss, who opined that Mr. Kyhn had “bilateral moderate to severe high frequency senso-rineural hearing loss with decreased auditory discrimination.” R. at 96. Mr. Foss attributed this hearing loss to Mr. Kyhn’s military service. R. at 96-97. In his NOD, Mr. Kyhn also stated that he was seeking service connection for tinnitus. R. at 96. In July 1999, the RO issued a Statement of the Case (SOC) continuing the denial of the hearing loss claim. However, the SOC contained no discussion or analysis regarding the evidence submitted along with the May 1999 NOD. R. at 100-07. The RO noted that it had requested from Mr. Kyhn “evidence to well ground his claim,” but that “[n]one has been received.” R. at 105. Mr. Kyhn appealed to the Board, stating that the RO had incorrectly found that he failed to respond to a request for information. R. at 109. In September 1999, Mr. Kyhn underwent a VA audiological examination. R. at 112-13. The audiologist recorded Mr. Kyhn’s reported history of noise exposure in service and opined that because of the “presence of the veteran’s military noise exposure and farming occupational noise exposure, it is reasonable to assume that at least a portion of his hearing loss may have been acquired due to military service.” Id. In November 1999, the RO issued a Supplemental SOC (SSOC) denying service connection for tinnitus, but granting service connection for hearing loss and assigning a 50% disability rating. R. at 115-17. Mr. Kyhn did not appeal the RO’s denial of service connection for tinnitus. See R. at 1-590.

In January 2004, Mr. Kyhn sought to reopen the tinnitus claim. R. at 262. He provided another letter from Mr. Foss, who, in a statement to Mr. Kyhn, opined that “[f]rom [Mr. Kyhn’s] history of noise exposure while in the military, without the benefit of hearing protection, it is quite likely this was the beginning of your hearing loss and tinnitus.” R. at 258. In May 2004, the RO determined that Mr. Kyhn’s evidence was not new and material. R. at 404-08. Mr. Kyhn appealed and, in January 2006, the Board determined that Mr. Foss’s January 2004 statement constituted new and material evidence sufficient to reopen the previously denied tinnitus claim; the Board remanded the matter for the RO to afford Mr. Kyhn a VA audiological examination “in order to ascertain the etiology and severity of any tinnitus that may be present.” R. at 552.

In February 2006, the Lincoln, Nebraska, RO forwarded an audiological examina[232]*232tion request to the VA Nebraska Western Iowa Health Care System. R. at 574-75. That examination was scheduled for March 7, 2006; however, Mr. Kyhn failed to appear for the examination. See R. at 557. On March 31, 2006, the RO issued an SSOC in which it denied service connection for tinnitus based on Mr. Kyhn’s reported failure to appear for his March 7, 2006, examination. R. at 577-81. In April 2006, Mr. Kyhn responded to a March 2006 request for information by stating that he had no other information or evidence to give to VA and requested that VA decide his claim as soon as possible. R. at 587. 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 Mr. Kyhn’s tinnitus was incurred in or causally related to service or aggravated by any service-connected disability. As part of its decision, the Board determined that the Secretary had complied with his duty to assist, pursuant to 38 U.S.C. § 5103A, because a VA audiology 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 38 C.F.R. § 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. This appeal followed.

II. LAW AND ANALYSIS

A. Presumption of Regularity — Notice of Scheduled Examination

There is a presumption of regularity under which it is presumed that government officials properly discharge their official duties in good faith and in accordance with law and governing regulations. Marsh v. Nicholson, 19 Vet.App. 381, 385 (2005); Sthele v. Principi, 19 Vet.App. 11, 17 (2004); Ashley v. Derwinski, 2 Vet.App. 307, 308 (1992). The Court has applied the presumption of regularity to various processes and procedures throughout the VA administrative process, including the RO’s mailing of notice of a VA medical examination. Jones v. West, 12 Vet.App. 98, 100-02 (1998). The presumption of regularity is not absolute; however, it may be overcome only by the submission of “clear evidence to the contrary.” Ashley, 2 Vet.App. at 309. A claimant’s mere statement of nonreceipt is insufficient for that purpose. See Butler v. Principi,

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Cite This Page — Counsel Stack

Bluebook (online)
24 Vet. App. 228, 2011 U.S. Vet. App. LEXIS 84, 2011 WL 135820, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kyhn-v-shinseki-cavc-2011.