Kyhn v. Shinseki

• Decision Date: 03 May 2013
• Docket Number: No. 2012–7003.,2012–7003.
• Citation: 716 F.3d 572
• Parties: Arnold C. KYHN, Claimant–Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent–Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

716 F.3d 572

Arnold C. KYHN, Claimant–Appellant,

v.Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent–Appellee.

No. 2012–7003.

United States Court of Appeals,Federal Circuit.

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. 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 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 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, 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 (Fed.Cir.2009)rev'd and remanded on other grounds sub nom Henderson ex rel. Henderson v. Shinseki, ––– U.S. ––––, 131 S.Ct. 1197, 179 L.Ed.2d 159 (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.” ⁴Andre 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 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.” ⁶Fed.R.Evid. 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...