Kyhn v. Shinseki

Arnold Kyhn (plaintiff) served in the United States Army from 1945 to 1946. In 2004, Kyhn sought to reopen a prior denied claim for service-connected-disability benefits for tinnitus. The Department of Veterans Affairs (the VA) (defendant) refused to reopen the claim. Upon Kyhn’s appeal of that denial, the Board of Veterans’ Appeals (the board) found that sufficient new and material evidence had been presented to warrant reopening, and the board remanded the case to the VA to provide Kyhn with a VA medical examination. Kyhn failed to attend the scheduled examination, however, and the board eventually denied his claim. Kyhn then appealed to the United States Court of Appeals for Veterans Claims (the veterans court), alleging that he had never received notice from the VA of the scheduled examination. The veterans court, in determining whether to apply a presumption of regularity to presume Kyhn had in fact been notified, sought and reviewed two affidavits from VA employees attesting to the VA’s regular practice for mailing such notice to claimants. These affidavits had not been included in the record before the board. Despite the rebuttal evidence that no copy of any notice being sent to Kyhn was found in his VA file, the veterans court relied on the affidavits to apply the presumption of regularity to find that the VA had properly notified Kyhn of the scheduled examination. The veterans court upheld the board’s decision. Kyhn appealed.