Veteranclaims’s Blog

May 12, 2014

Single Judge Application; Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013); No Examination Notification Letter

Excerpt from decision below:

“In this case, although the record contains a May 2012 Supplemental Statement of the Case stating that “[a] review of [Mr. Cunningham’s] claims folder shows that the examination notification letter was sent to [his] last known address” (R. at 20), the record on appeal does not contain a copy of the examination notification letter. Moreover, resolution of this matter requires making determinations in the first instance that are fact based, evidentiary, and potentially not based on the record before the Board. Id. (noting that the notification issue may require the Board to engage in additional fact finding to render a decision on the issue, particularly if the Board relied on presumption of regularity to support finding that the veteran was notified); see also Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013) (holding that the Court of Appeals for  Veterans Claims improperly relied on extra-record evidence to make, in the first instance, a finding of fact related to the presumption of regularity in violation of its statutorily granted jurisdiction to review the Board’s decision based upon the record before the Board); see also Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (holding that a court of appeals is not to make factual determinations in the first instance but to remand the matter if it determines that the lower tribunal failed to make a finding of fact essential to the decision). Accordingly, the Court will exercise its discretion to remand this matter for consideration by the Board in the first instance. Maggitt and Kyhn, both supra.”

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 12-3159
ROBERT L. CUNNINGHAM, APPELLANT,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
Before DAVIS, Judge.
MEMORANDUM DECISION
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.

DAVIS, Judge: U.S. Army veteran Robert L. Cunningham appeals through counsel from a September 27, 2012, Board of Veterans’ Appeals (Board) decision that denied disability benefits for hypertension,including as secondary to service-connected post-traumatic stress disorder(PTSD) and diabetes mellitus. For the following reasons, the Court will set aside the Board’s September 2012 decision and remand the matter for further adjudication consistent with this decision.

I. ANALYSIS
Mr. Cunningham argues that the Board erred in finding that the duty to assist had been satisfied because he had not been provided with a medical examination in accordance with the terms of a 2012 Board remand. The Board found no violation of the duty to assist because Mr. Cunningham failed to appear for his scheduled VA examination. On appeal, Mr. Cunningham asserts for the first time that he never received notice of the scheduled examination. Although Mr. Cunningham did not raise the notice argument to the Board, the Court may exercise its discretion to hear or remand arguments raised for the first  time on appeal. Maggitt v. West, 202 F.3d 1370, 1377-78 (Fed. Cir. 2000) (holding that the Court has discretion to consider arguments presented to it in the first instance); Kyhn v. Shinseki, 26 Vet. App. 371, 374 (2013)

(explaining that the Court may consider the appellant’s newly raised argument that he received no notice of a scheduled medical examination for the first time on appeal).
As in Kyhn, Mr. Cunningham alleges that – based on the fact that the record contained no evidence showing that VA notified him of the time and date of the April 27, 2012, examination – he received no notice of the scheduled examination. 26 Vet.App. at 373 (citing Brief of Appellant at 5-6, Kyhn v. Shinseki, U.S. Vet. App. No. 07-2349 (EAJA application filed Jan. 14, 2014) (“Not a  single piece of evidence in . . . [the] record offers proof [ ] VA provided [Mr. Kyhn] any notice of the scheduled examination.”))). In this case, although the record contains a May 2012 Supplemental Statement of the Case stating that “[a] review of [Mr. Cunningham’s] claims folder shows that the examination notification letter was sent to [his] last known address” (R. at 20), the record on appeal does not contain a copy of the examination notification letter. Moreover, resolution of this matter requires making determinations in the first instance that are fact based, evidentiary, and potentially not based on the record before the Board. Id. (noting that the notification issue may require the Board to engage in additional fact finding to render a decision on the issue, particularly if the Board relied on presumption of regularity to support finding that the veteran was notified); see also Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013) (holding that the Court of Appeals for  Veterans Claims improperly relied on extra-record evidence to make, in the first instance, a finding of fact related to the presumption of regularity in violation of its statutorily granted jurisdiction to review the Board’s decision based upon the record before the Board); see also Hensley v. West, 212 F.3d 1255, 1263 (Fed. Cir. 2000) (holding that a court of appeals is not to make factual determinations in the first instance but to remand the matter if it determines that the lower tribunal failed to make a finding of fact essential to the decision). Accordingly, the Court will exercise its discretion to remand this matter for consideration by the Board in the first instance. Maggitt and Kyhn, both supra.
II. CONCLUSION
Based on the foregoing, the Court SETS ASIDE the September 27, 2012, Board
decision and
REMANDS the matter for further proceedings consistent with this decision.
DATED: April 30, 2014
2

Copies to:
Robert V. Chisholm, Esq.
VA General Counsel (027)
3

 

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