Veteranclaims’s Blog

November 12, 2013

Single Judge Application; Kyhn II; Kyhn III; Procedure Notify Claimants of Scheduled Examinations; Presumption of Regularity

Excerpt from decision below:

“The Secretary argued that Kyhn II was on point, that it should be presumed that Mr. Collins received notice of the scheduled VA examinations, and Pursuant to 38 C.F.R. § 3.655(a) (2012), “[w]hen entitlement or continued entitlement to a 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, or reexamination, action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate.” As relevant here, paragraph (b) of § 3.655 states: “When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record.”,
===========================

“While this case was pending before the Court, the U.S. Court of Appeals
for the Federal Circuit (Federal Circuit), vacated Kyhn II and remanded the case, finding that this Court exceeded its jurisdiction by relying on evidence outside of the record before the Board when determining that the presumption of regularity applies to VA procedures for notifying claimants of scheduled examinations. See Kyhn v. Shinseki (Kyhn III), No. 2012-7003, 2013 U.S. App. LEXIS 9027,at*15-*16 (Fed. Cir. May 3, 2013). Because the VA affidavits were not presented to the Board, did not constitute legal authority—such as statutes or regulations—and did not describe facts not subject to reasonable dispute such that a court could take judicial notice of them—as would, for example, VA manuals or published procedures—the Federal Circuit determined that this Court was statutorily prohibited from considering them in the first instance. Id. at *7-*15.
========================

First, the Court is unaware of any legal authority or generally available resource from which the Court could determine whether VA has regular procedures for notifying claimants of scheduled examinations and what those procedures are. Nor has the Secretary brought any to the Court’s attention. See Kyhn III, 2013 U.S. App. LEXIS 9027, at *9-*10 (citing 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.”)). Thus, there is no positive evidence or authority upon which this Court can rely to find that the presumption attaches.
7
========================

“Thus, because the record before the Court is insufficient to allow the Court to determine whether the presumption of regularity applies, whether the Board erred in implicitly finding that Mr. Collins had been notified of scheduled examinations, and, ultimately, in determining that Mr.Collins did not show good cause for failing to attend scheduled examinations, and in denying service connection based on the evidence as it stood at the time, the Court will set aside the Board’s decision
and remand the case for the Board to consider the presumption-of-regularity argument in the first instance and make any necessary factual findings related to whether Mr. Collins was properly scheduled for examinations and properly notified of scheduled examinations.,…”
==========================

—————————————————-
Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 12-0807
LEWIS COLLINS III, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.

Before BARTLEY, Judge.

MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a), this action may not be cited as precedent.

BARTLEY, Judge: Veteran Lewis Collins III appeals, through counsel, from a
November 16, 2011, Board of Veterans’ Appeals (Board) decision, which denied
service connection for a right hand disability, a right shoulder disability, a right hip disability, a right ankle disability, a bilateral knee disability, and hypertension. Record (R.) at 3-13. This appeal is timely and the Court has
jurisdiction pursuant to 38 U.S.C. §§ 7252(a) and 7266(a). Single-judge
disposition is appropriate. See Frankel v. Derwinski, 1 Vet.App. 23, 25-26 (1990). For the reasons set forth below, the Court
will set aside the November 2011 Board decision and remand them at terfor readjudicatio with this decision.

I. FACTS
Mr. Collins served on active dutyin the U.S. Armyfor approximately22 years,
from October 1975 to November 1997. R. at 490. The only service medical records (SMRs) of record are those submitted by the veteran himself, and they are incomplete. R. at 25-26.
They show a left ankle sprain in May 1977 (R. at 110); 1976 and 1978 complaints of left wrist problems (R. at 125-27); swelling of the right ankle and inflamed tendons in August 1984 (R. at 108); a left hip strain in August 1993 (R. at 106); a March 1994 complaint of right ankle pain from an inversion injury (R.

at 121); and a 1997 clinical followup note regarding lower back, left hip,
and left leg pain (R. at 116). In January 2008, he sought service connection for numerous conditions and disabilities. R. at 378-87. The VA regional office (RO), in a November 2008 decision, denied service connection as to all claims, noting that it was unable to obtain any SMRs. R. at 199-207. Despite continued
efforts VA could not locate Mr. Collins’s SMRs covering his 22 years of
service and ultimately sent him a memorandum of unavailability on October 29, 2010. See R. at 421-22; R. at 7.
The veteran filed a Notice of Disagreement (NOD) stating that he had
already submitted copies of the SMRs that were in his possession. R. at 195. When the RO continued its denial (R. at 143-71), Mr. Collins appealed to the Board, asserting that SMRs would verify that each claimed disability originated in service. R. at 104-05.
In June 2009, Mr. Collins underwent a VA joints examination. After
reviewing those SMRs that were available and physically evaluating the veteran, the examiner opined: (1) There was no
evidence of a left ankle condition and it was less likely than not that a
right ankle condition was
related to service; (2) it would be impossible, without resorting to
speculation, to link a right wrist
condition to service; (3) it was less likely than not that a left knee
condition was related to service;
(4) it was less likely than not that a right hand condition was related to
service; but (5) it was at least
as likely as not that a right foot condition was related to service. R. at
94-102. In an August 2009
Supplemental Statement of the Case (SSOC), the RO continued to deny
service connection for
hypertension, right and left ankle conditions, right and left knee
conditions, a right hip condition, a
right side and shoulder condition, a right wrist condition, and a right
hand condition. R. at 72-80.
Mr. Collins testified at a Board hearing on March 10, 2010. R. at 32-52.
Toward the end of
the hearing, the Board member stated:
Okay. I think that is, because I think any gaps that might be in the
service treatment
records, you know, are filled in by his testimony and we’re clear there is
credible
testimony of service incurrence and he has testified as to some continuity
of
symptomatology. I want to look and see what sort of current treatment
records we
have but we probably are going to need another exam.
R. at 51. When the Board member inquired whether Mr. Collins would “be
able and willing to
report to an examination,” he responded: “Yes, ma’am. . . I sure will.” R.
at 51. In a July 2010
decision, the Board granted service connection for a right wrist
disability, denied service connection
2

for a left ankle disability, and remanded for additional development, to
include performing new VA
medical examinations, his remaining orthopedic and hypertension
disabilities. R. at 17-29.
In a September 8, 2010, letter, the VA Appeals Management Center (AMC)
advised Mr.
Collins that it “will be developing additional evidence concerning your
appeal, recently remanded
by the [Board] on July 22, 2010.” R. at 442 (emphasis omitted). On the
second page of the letter,
under “Important Information,” the AMC wrote: “We asked the VA medical
facility nearest you to
schedule you for an examination in connection with your claim. They will
notify you of the date,
time, and place of the examination. If you can’t keep the appointment or
want to be re-scheduled,
contact the medical facility on the appointment notice as soon as possible
.” R. at 443. A document
from the VA medical center (VAMC) in Columbia, South Carolina, confirms
that, on September 8,
2010, the AMC asked the VAMC to scheduleMr.Collins “as soon as possible”
for VA examinations
in compliance with the Board’s remand decision. R. at 439-41. In the last
paragraph of the
document, the AMC requested that, “[i]f [the] veteran fails to report for
examination, please provide
a copy of the exam notification letter.” R. at 441.
ASeptember29,2010,printoutfrom VA’s AutomatedMedical
InformationExchangesystem
noted that the hypertension and joints examinations were cancelled on
September 21 because Mr.
Collins failed to report for the examinations. R. at 436-38. The AMC sent
a letter dated October
18, 2010, to Mr. Collins, informing him that VA was still having trouble
locating his SMRs,
suggestingalternativeevidenceforhim to submit and statingthat if VA did
not receive new evidence
or information a decision might be made on his claims “after 10 days.” R.
at 433. An AMC “Report
of General Information” also dated October 18, 2010, notes that an
employee attempted to contact
Mr. Collins but that there was no answer. R. at 431.
In a June 2011 SSOC, the RO stated that, because the veteran failed to
report for his
examinations without presentingevidenceofgoodcause,theexaminations
wouldnot berescheduled
and VA would adjudicate the claims based on the evidence currently of
record. R. at 426. Upon
reviewing the evidence, the RO continued its denial of service connection.
R. at 421-27.
The Board issued the decision currently on appeal in November 2011,
stating:
[T]he Board acknowledges that the VA examination of record is inadequate.
The
Board remanded the case in July 2010, in an attempt to remedy this
deficiency by
providing the [v]eteran with another VA examination; however, he failed to
report
3

for the examination and did not offer any explanation for his absence. He
was
notified in a September 2010 letter that he would be scheduled for a VA
examination
and failure to report could result in denial of his claim. While VA has a
duty to assist the [v]eteran in developinghis claim, the [v]eteran has a concurrent duty to cooperate with VA in such efforts. The Board finds that VA has satisfied its duty to assist the [v]eteran in this regard, and it will proceed to adjudicate the claim on the basis of the available evidence. See 38 C.F.R. § 3.655.1 R. at 7 (some citations omitted). Based on the available evidence, the Board denied service connection for hypertension and the claimed orthopedic disabilities. R. at 9-13. This appeal followed.

II. THE PARTIES’ ARGUMENTS
In briefing before the Court, both parties relied heavily on Kyhn v. Shinseki (Kyhn II), 24 Vet.App. 228 (2011) (per curiam).2
In that case, the appellant raised purported nonreceipt of a VA examination notice for the first time before the Court. Id. at 232.
Based upon affidavits provided by the Secretary from VA personnel, Kyhn II held as a matter of law “that VA is entitled to a presumption of regularity that VA employees properly discharged their official duty to notify Mr. Kyhn of the . . . examination in accordance with the procedures set forth in the affidavits.” Id.
at 234. We further held that, because the affidavits averred that it is VA
practice not to retain a copy of the examination notice in the claims folder, neither its absence from the claims folder, nor any of Mr. Kyhn’s other offered evidence was sufficient to rebut the presumption.Id. at 235-38.
The Secretary, urging affirmance, contended preliminarily that because Mr.
Collins did not raise below the issue of purported nonreceipt of the notification, the Court should decline to address it in the first instance. Secretary’s Brief (Br.) at 7. The Secretary argued that Kyhn II was on point, that it should be presumed that Mr. Collins received notice of the scheduled VA examinations, and

1. Pursuant to 38 C.F.R. § 3.655(a) (2012), “[w]hen entitlement or continued
entitlement to a 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, or reexamination, action shall be taken in accordance with paragraph (b) or (c) of this section as appropriate.” As relevant here, paragraph (b) of § 3.655 states: “When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record.”,/b>

2. This Court issued Kyhn II on January 18, 2011, withdrawing and replacing its earlier, January 15, 2010, decision. See Kyhn v. Shinseki (Previous HitKyhnNext Hit I), 23 Vet.App. 335 (2010).
4

that he had failed to rebut that presumption. Secretary’s Br. at 4-14. Mr.
Collins likewise acknowledged that Kyhn II was apposite but contended that the record in the present case is distinguishable and provides clear evidence to rebut the presumption of regularity, namely, (1) the absence from the claims folder of a copy of the examination notification letter, despite the AMC’s request that the VAMC provide such a copy if the veteran did not report for the examination, and (2) an October 18, 2010, AMC letter requesting additional information from Mr. Collins but not mentioning any missed appointment. Appellant’s Br. at 4-8. The veteran
further argued that the Board did not provide an adequate statement of reasons or bases, inasmuch as it failed to discuss the applicability of § 3.655 to his case and whether VA proved his failure to appear for the examinations was not excusable for good cause. Id. at 8-9; Reply Br. at 4. He requested that the Board decision
be set aside and remanded for further proceedings. Appellant’s Br. at 9.
While this case was pending before the Court, the U.S. Court of Appeals
for the Federal Circuit (Federal Circuit), vacated Kyhn II and remanded the case, finding that this Court exceeded its jurisdiction by relying on evidence outside of the record before the Board when determining that the presumption of regularity applies to VA procedures for notifying claimants of scheduled examinations. See Kyhn v. Shinseki (Kyhn III), No. 2012-7003, 2013 U.S. App. LEXIS 9027,at*15-*16 (Fed. Cir. May 3, 2013). Because the VA affidavits were not presented to the Board, did not constitute legal authority—such as statutes or regulations—and did not describe facts not subject to reasonable dispute such that a court could take judicial notice of them—as would, for example, VA manuals or published procedures—the Federal Circuit determined that this Court was statutorily prohibited from considering them in the first instance. Id. at *7-*15.

On May 6,2013, this Court ordered the parties to file supplemental
briefing advising whether and to what extent the Federal Circuit’s decision either amends the arguments advanced in their respective briefs or alters their litigation positions or both. Mr. Collins responds that Previous HitKyhnNext Hit III is
dispositive that unless there is record evidence or independent legal
authority on which to rely, this Court cannot determine that the presumption of regularity attaches to VA procedures for notifying claimants of scheduled examinations. Accordingly, he maintains, his case must be remanded for the
Board to address his arguments and make preliminary factual findings.
Appellant’s Supplemental(Supp.) Br. at 2-13. The Secretary renews his contention that Mr. Collins waived the argument
5

regarding alleged nonreceipt of the examination notice bynot raising it below. Secretary’s Supp. Br. at 6-7. He further argues that, even without reliance on Previous HitKyhnNext Hit II, the presumption of regularity should attach to procedures for notifying claimants of VA examinations. Id. at 5.
Finally, the Secretary contends that Mr. Collins’s assertion that he did not receive notice of the scheduled examinations is a new fact that this Court would have to “find” in the first instance even to consider his present arguments, and that the Court is prohibited from such factfinding. Id. at 6-12. For the reasons that
follow, the Court agrees with the veteran that remand is appropriate.

III. ANALYSIS
First, although the Secretary argues that Mr. Collins has waived the issue
of purported
nonreceipt of the notification of examination byfailing to raise it before
the Board, the Court has the
discretion to hear arguments raised for the first time in appeals properly
before it and will exercise
that discretion in this case. See Maggitt v. West, 202 F.3d 1370, 1377 (
Fed. Cir. 2002); see also
Massie v. Shinseki, 25 Vet.App. 123, 126 (2011) (cautioning against
application of “the exhaustion
of remedies doctrine against a party such that the party’s arguments go
unheard” (internal quotation
marks omitted)). Where, as here, a claim proceeds through nonadversarial
administrative review in
which the agency, “not the claimant, has primary responsibility for
identifying and developing the
issues,” and legal representation is minimal or absent, Sims v. Apfel, 530
U.S. 103, 112 (2000)
(plurality opinion), exercising discretion to hear a claimant’s argument
is the most appropriate
course.
The Secretary’s contention that Mr. Collins’s argument amounts to an
assertion that the
veteran did not receive notice of the VA examinations, and that to address
that argument this Court
would have to determine in the first instance that Mr. Collins did not
receive such notice, thereby
engaging in de novo factfinding, is not persuasive. Properlyunderstood, Mr.
Collins is not asserting
a fact but putting forth an argument. He asserts that, despite finding
that he was notified by letter
of scheduled September 2010 VA examinations (R. at 7), the Board “pointed
to no evidence to
establish that an examination had been scheduled[,] much less that [he]
had been notified of an
examination,” thereby rendering the Board’s statement of reasons or bases
inadequate. Appellant’s
Supp. Br. at 5. Thus, contrary to the Secretary’s contention, the Court
need not “find” or accept that
6

Mr. Collins did not receive notice of the scheduled examinations in order
to consider the veteran’s
argument. See Gilbert v. Derwinski, 1 Vet.App. 49, 57 (1990) (stating that
on issues of material fact
and law presented on the record, the Board is required to support its
findings with a statement of
reasons or bases that enables a claimant to understand the precise basis
for the Board’s decision and
facilitates review in this Court). The Court voices no opinion on whether
examinations were
properly scheduled or whether Mr. Collins received notice of the VA
examinations; as discussed
below, those are issues for the Board to consider in the first instance.
The Secretaryargues that the Court should applythe presumption of
regularityin the present
case, presume that VA properly sent Mr. Collins notice of scheduled
September 2010 VA
examinations, and determine that Mr. Collins has not rebutted the
presumption. The Court cannot
agree. The presumption of regularity is a doctrine under which it is
presumed that Government
officials discharged their official duties properly, in good faith, and in
accordance with applicable
law and governing regulations. See Marsh v. Nicholson, 19 Vet.App. 381,
385 (2005); Ashley v.
Derwinski, 2 Vet.App. 307, 308 (1992). “The doctrine thus allows courts to
presume that what
appears regular is regular, the burden shifting to the attacker to show
the contrary.” Butler v.
Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001). However, if the facts
before the Court do not appear
regular, then the presumption does not attach. See Van Valkenburg v.
Shinseki, 23 Vet.App. 113,
116 (2009); cf. Previous HitKyhnNext Hit II, 24 Vet.App. at 233 (ordering the Secretary to
provide the Court with
information concerning the regular process for notifying veterans of
scheduled VA examinations
because no such information was contained in the record or available from
published sources).
On the present record, theCourt is unabletodetermine whetherthe
presumption of regularity
applies. First, the Court is unaware of anylegal authorityor
generallyavailable resource from which
the Court could determine whether VA has regular procedures for notifying
claimants of scheduled
examinations and what those procedures are. Nor has the Secretary brought
any to the Court’s
attention. See Previous HitKyhnNext Hit III, 2013 U.S. App. LEXIS 9027, at *9-*10 (citing Previous HitKyhnNext Hit
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.”)). Thus, there is no positive evidence or
authority upon which this Court
can rely to find that the presumption attaches.
7

Second, Mr. Collins has cited portions of the record that, he argues,
suggest that VA does not
have a regular process for notifying claimants of scheduled examinations,
and that should caution
the Court against determining that the presumption of regularity applies (
see Appellant’s Br. at 5-8;
Appellant’s Supp. Br. at 5-7): (1) There is no copy in the record of the
letter purportedly sent to Mr.
Collins notifying him of scheduled September 2010 VA examinations, despite
the AMC’s request
to the VAMC that “[i]f [the] veteran fails to report for examination,
please provide a copy of the
exam notification letter” (R. at 441); (2) September 8, 2010, letters from
the AMC advised Mr.
Collins that the VAMC would notify him by letter of his examination date (
R. at 442-44) and
advised the VAMC to schedule examinations (R. at 436-38), but there is no
copy of the crucial
scheduling letter in the record; (3) an October 18, 2010, letter from the
AMC advised Mr. Collins
that it was working on his claims and requested any additional evidence in
his possession because
it had not yet located his SMRs (see R. at 432-33). The veteran argues
that, given the absence of his
complete SMRs, “an examination would have been delayed” until the
unavailability of SMRs was
established. Appellant’s Supp. Br. at 7 (citing 38 C.F.R. § 4.1 (2012) (”
It is thus essential, both in
the examination and in the evaluation of disability, that each disability
be viewed in relation to its
history.”)). The purported scheduling of the VA examinations for September
21, 2010, Mr. Collins
concludes, would have been premature, thereby “inject[ing] further
question into whether a
presumption of regularity is warranted in this case.” Id. at 7-8.
The Board made no findings with regard to a regular process for notifying
VA claimants of
scheduled examinations in general, or specifically with regard to Mr.
Collins’s case. The Board
stated that Mr. Collins was “notified in a September 2010 letter that he
would be scheduled for a VA
examination and failure to report could result in a denial of his claim.”
R. at 7. Notably, the Board
did not specifically find that Mr. Collins was notified of an examination
date, only that he was
notified that he “would be scheduled” for examinations. The Board then
offered a conclusory
statement that the dutyto assist was satisfied. R. at 7. The absence of
anyofficial source delineating
VA’s proceduresfornotifyingclaimantsofscheduledexaminations—and
deficienciesin theBoard’s
explanation of VA’s process for ensuring that this militaryretiree who
served for 22 years in the U.S.
Armywasscheduledforexaminations
andproperlynotifiedofthescheduledexaminations—prevent
8

the Court from determining whether the presumption of regularity applies
in this situation and require remand.
Thus, because the record before the Court is insufficient to allow the Court to determine whether the presumption of regularity applies, whether the Board erred in implicitly finding that Mr. Collins had been notified of scheduled examinations, and,ultimately, in determining that Mr.Collins did not show good cause for failing to attend scheduled examinations, and in denying service connection based on the evidence as it stood at the time, the Court will set aside the Board’s decision
and remand the case for the Board to consider the presumption-of-regularity argument in the first instance and make any necessary factual findings related to whether Mr. Collins was properly scheduled for examinations and properly notified of scheduled examinations., See Tucker v. West, 11 Vet.App. 369, 374 (1998) (stating that remand is warranted when, inter alia, the record is inadequate or the Board’s statement of reasons or bases is inadequate); see also Kyhn III, 2013 U.S.
App. LEXIS 9027, at *16 n.10 (stating that remand to the Board is required
if there is “insufficient factual development of the record”).
In pursuing his case on remand, Mr. Collins is free to submit additional
evidence and argument in accordance with Kutscherousky v. West, 12 Vet.App. 369, 372-73 (1999) (per curiam order), and the Board must consider any such evidence or argument submitted. See Kay v. Principi, 16 Vet.App. 529, 534 (2002). The Board shall proceed expeditiously, in accordance with 38 U.S.C. §§ 5109B and 7112 (requiring Secretary to provide for “expeditious treatment” of claims remanded
by Board or Court).

IV. CONCLUSION
Upon consideration oftheforegoing,theNovember16,2011,Boarddecisionis SET
ASIDE, and the matter is REMANDED for readjudication consistent with this
decision.
DATED: June 20, 2013
Copies to:
Michael R. Viterna, Esq.
VA General Counsel (027)
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