## Facts

- Arnold C. Kyhn, a U.S. Army veteran, sought service connection for tinnitus after earlier VA adjudication had denied tinnitus and that denial became final.
- In 2004, Kyhn sought to reopen the tinnitus claim and submitted a private audiologist’s statement linking tinnitus to in-service noise exposure.
- The Board of Veterans’ Appeals reopened the claim based on new and material evidence and remanded for a VA examination to determine etiology.
- VA scheduled an examination for March 7, 2006; Kyhn did not appear.
- The Board denied service connection for tinnitus based on the evidence then of record.
- On appeal, the Court of Appeals for Veterans Claims affirmed, applying the presumption of regularity to conclude that VA properly notified Kyhn of the examination.
- To establish VA’s regular notice practice, the Veterans Court relied on affidavits from VA officials that were created and submitted for the first time on appeal and were not before the Board.

## Issues

1. Whether the Court of Appeals for Veterans Claims exceeded its statutory authority by relying on extra-record affidavits to establish VA’s regular notice practices and apply the presumption of regularity in affirming the Board.

## Decision

- The Federal Circuit held that the Veterans Court lacked jurisdiction to rely on affidavits not contained in the record before the Board.
- The Federal Circuit vacated the Veterans Court’s judgment and remanded for further proceedings consistent with the statutory limits on appellate review.

## Legal Principles

- The Veterans Court’s review of Board decisions is limited by statute to the record of proceedings before the Secretary and the Board.  
- The Veterans Court may not consider or rely on evidence introduced for the first time on appeal to supply missing factual predicates for affirmance.
- Using extra-record affidavits to establish an agency’s regular practice constitutes impermissible fact-finding by an appellate tribunal.
- The presumption of regularity may not be invoked on the basis of extra-record proof; any necessary factual foundation must be established in the proper record before the Board.

## Conclusion

The Federal Circuit vacated and remanded because the Veterans Court improperly relied on extra-record affidavits to establish VA’s notice practices and apply the presumption of regularity, exceeding the court’s record-bound appellate authority.


Kyhn v. Shinseki, 716 F.3d 572 (Fed. Cir. 2013)