Friday, May 3, 2013

Kyhn v. Shinseki

Kyhn v. Shinseki, 26 Vet.App. 371 (Vet.App. Oct. 22, 2013)
This decision is the result of a Federal Circuit opinion that found that the CAVC acted outside its jurisdiction when it relied on extra-record evidence to determine that VA had properly notified the veteran of a scheduled examination, based on the presumption of administrative regularity. See Kyhn v. Shinseki, 716 F.3d 572 (2013). On remand, the CAVC returned the case to the Board to explain its determination that Mr. Kyhn was properly notified of the scheduled examination. The CAVC noted that the Board did not discuss the documents it relied on in finding that Mr. Kyhn was notified of the examination and did not discuss whether this finding was based on the presumption of regularity. The Court stated that if the Board bases its finding on the presumption of regularity, it “should explain in detail the regular and established procedure that VA follows” to schedule and notify claimants of examinations.

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