Kyhn v. Shinseki, 716 F.3d 572 (2013)
The Federal Circuit determined that the CAVC improperly relied on evidence that was not in the record before the Board to determine that the presumption of regularity applied in this particular situation. In this case, the veteran failed to attend for a schedule audiology examination, and VA denied his claim for service connection for tinnitus based on the existing evidence of record. On appeal to the CAVC, the veteran asserted that VA never notified him of the examination. The CAVC ordered VA to provide the Court with information regarding VA’s process used to notify veterans of examinations. The Secretary submitted two affidavits from VA employees, only one of whom had professional knowledge of the notification process. The CAVC relied on this evidence to determine that the presumption of regularity applied – and that the absence of a notice from VA in the veteran’s claims file did not rebut the presumption.
The Federal Circuit found that the CAVC exceeded its jurisdiction when it relied on the extra-record affidavits that were not in the record before the Board. The Court found that the CAVC engaged in impermissible fact finding to determine that VA did have a regular process for notifying veterans of scheduled examinations, and remanded the case.