finding a reasons or bases error harmless where the appellant was not entitled to benefits as a matter of law
How later courts described this case
- finding a reasons or bases error harmless where the appellant was not entitled to benefits as a matter of law
Written by the judges who cited it.
The opinion
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
No. 07-2349
ARNOLD C. KYHN , APPELLANT ,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, APPELLEE.
On Appeal from the Board of Veterans' Appeals
(Decided January 15, 2010)
John S. Berry and Chad J. Wythers, both of Lincoln, Nebraska, were on the brief for the
appellant.
John H. Thompson, Acting General Counsel; R. Randall Campbell, Assistant General
Counsel; Richard Mayerick, Deputy Assistant General Counsel; and James B. Cowden, all of
Washington, D.C., were on the brief for the appellee.
Before GREENE, Chief Judge, and MOORMAN and SCHOELEN, Judges.
GREENE, Chief Judge: Veteran Arnold C. Kyhn appeals, through counsel, a May 17, 2007,
decision of the Board of Veterans' Appeals (Board) that denied his claim for VA service connection
for tinnitus. Record (R.) at 1-12. Mr. Kyhn argues that (1) the Board failed to ensure compliance
with its January 2006 remand instructions by failing to provide him with a VA audiological
examination in violation of Stegall v. West, 11 Vet.App. 268, 270-71 (1998); (2) VA failed to
provide him notice of his scheduled audiological examination; (3) the Board erred by improperly
discounting evidence favorable to his tinnitus claim; and (4) the Board failed to provide an adequate
statement of reasons or bases for its decision. The Secretary argues for affirmance of the May 2007
Board decision, asserting that (1) VA complied with the January 2006 Board remand instructions
because the evidence of record demonstrates that a VA audiological examination was scheduled;
(2) the presumption of regularity attaches to the notice of the examination and Mr. Kyhn has failed
to rebut that presumption; and (3) the Board properly denied service connection because Mr. Kyhn
failed to attend his scheduled VA examination. For the reasons that follow, the Court will affirm
the May 2007 Board decision.
I. BACKGROUND
Mr. Kyhn served honorably in the U.S. Army from May 1945 to October 1946. R. at 17.
In February 1998, he claimed service connection for hearing loss, which a VA regional office (RO)
denied as not well grounded. R. at 87-89. In May 1999, Mr. Kyhn submitted a Notice of
Disagreement (NOD) along with medical evidence from a private audiologist, Craig A. Foss, who
opined that Mr. Kyhn had "bilateral moderate to severe high frequency sensorineural hearing loss
with decreased auditory discrimination." R. at 96. Mr. Foss attributed this hearing loss to Mr.
Kyhn's military service. R. at 96-97. In his NOD, Mr. Kyhn also stated that he was seeking service
connection for tinnitus. R. at 96. In July 1999, the RO issued a Statement of the Case (SOC)
continuing the denial of his hearing loss claim. However, the SOC contained no discussion or
analysis regarding the evidence submitted along with the May 1999 NOD. R. at 100-07. The RO
noted that it had requested from Mr. Kyhn "evidence to well ground his claim," but that "[n]one has
been received." R. at 105. Mr. Kyhn appealed to the Board, stating that the RO had incorrectly
found that he failed to respond to a request for information. R. at 109. In September 1999, Mr.
Kyhn underwent a VA audiological examination. R. at 112-13. The audiologist recorded Mr.
Kyhn's reported history of noise exposure in service and opined that due to the "presence of the
veteran's military noise exposure and farming occupational noise exposure, it is reasonable to assume
that at least a portion of his hearing loss may have been acquired due to military service." Id. In
November 1999, the RO issued a Supplemental SOC (SSOC) denying service connection for
tinnitus, but granting service connection for hearing loss and assigning a 50% rating. R. at 115-17.
Mr. Kyhn did not appeal the RO's denial of service connection for tinnitus. See R. at 1-590.
In January 2004, Mr. Kyhn sought to reopen the tinnitus claim. R. at 262. He provided
another letter from Mr. Foss, who, in a statement to Mr. Kyhn, opined that "[f]rom [Mr. Kyhn's]
history of noise exposure while in the military, without the benefit of hearing protection, it is quite
likely this was the beginning of your hearing loss and tinnitus." R. at 258. In May 2004, the RO
2
determined that Mr. Kyhn's evidence was not new and material. R. at 404-08. Mr. Kyhn appealed
and, in January 2006, the Board determined that Mr. Foss's January 2004 statement constituted new
and material evidence sufficient to reopen the previously denied tinnitus claim; the Board remanded
the matter for the RO to afford Mr. Kyhn a VA audiological examination "in order to ascertain the
etiology and severity of any tinnitus that may be present." R. at 552.
In February 2006, the Lincoln, Nebraska, RO forwarded an audiological examination request
to the VA Nebraska Western Iowa Health Care System. R. at 574-75. That examination was
scheduled for March 7, 2006; however, Mr. Kyhn failed to appear for the examination. See R. at
557. On March 31, 2006, the RO issued an SSOC in which it denied service connection for tinnitus
based on Mr. Kyhn's reported failure to appear for his March 7, 2006, examination. R. at 577-81.
In April 2006, Mr. Kyhn responded to a March 2006 request for information by stating that he had
no other information or evidence to give to VA and requesting that VA decide his claim as soon as
possible. R. at 587. The matter was returned to the Board and in its May 17, 2007, decision, the
Board denied service connection for tinnitus after finding that the record contained no probative
evidence that Mr. Kyhn's tinnitus was incurred in or causally related to service or aggravated by any
service-connected disability. As part of its decision, the Board determined that the Secretary had
complied with his 38 U.S.C. § 5103A duty to assist because a VA audiology examination was
scheduled and "notification of the examination was mailed to the veteran at his correct address of
record." R. at 5. The Board noted that, in accordance with 38 C.F.R. § 3.655, "[w]hen, as here,
entitlement to a VA 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 scheduled
in conjunction with an original compensation claim, the claim shall be rated on the evidence of
record." 38 C.F.R. § 3.655. This appeal followed.
II. APPLICABLE LAW AND ANALYSIS
A. Stegall Violation
Mr. Kyhn argues that the Board erred by failing to ensure compliance with its January 2006
remand instructions because he was not provided with a VA audiological examination. In Stegall,
this Court held that "a remand by this Court to the Board confers on the veteran or other claimant,
3
as a matter of law, the right to compliance with the remand orders." Stegall, 11 Vet.App. at 271.
The Court also held that "the Secretary . . . [had] a concomitant duty to ensure compliance with the
terms of the remand" and that "the Board itself errs in failing to insure compliance." Id. It is
substantial compliance, not absolute compliance, that is required. See Dyment v. West, 13 Vet.App.
141, 146-47 (1999).
In its January 2006 remand order, the Board instructed the RO to make "[a]rrangements . . .
with the appropriate VA medical facility for the veteran to be afforded a VA audio examination in
order to ascertain the etiology and severity of any tinnitus that may be present." R. at 552. On
February 3, 2006, the RO requested the VA Nebraska Western Iowa Health Care System to schedule
Mr. Kyhn for an audiological examination. R. at 574. The record reflects that that examination was
scheduled for March 7, 2006. R. at 557. Thus, VA substantially complied with the January 2006
remand. See Dyment, supra. In accordance with the Board's instructions, VA made arrangements
for Mr. Kyhn to be examined at an appropriate VA facility. Mr. Kyhn's failure to report for that
examination, without a demonstration of good cause, does not negate VA's compliance with the
Board's remand orders. See 38 C.F.R. § 3.655(a) (2009) (setting forth examples of good cause for
missing scheduled VA examination).
B. Presumption of Regularity–Notice of Scheduled Examination
"There is a presumption of regularity under which it is presumed that government officials
'have properly discharged their official duties.'" Ashley v. Derwinski, 2 Vet.App. 307, 308 (1992)
(quoting United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926)); see Sthele v. Principi,
19 Vet.App. 11, 17 (2004). The Court has applied the presumption of regularity to various processes
and procedures throughout the VA administrative process, including the RO's mailing of notice of
a VA medical examination. Jones v. West, 12 Vet.App. 98, 100-02 (1998). The presumption of
regularity is not absolute; however, it may be overcome only by the submission of "clear evidence
to the contrary." Ashley, 2 Vet.App. at 309. A claimant's mere statement of nonreceipt is
insufficient for that purpose. See Butler v. Principi, 244 F.3d 1337, 1340 (Fed. Cir. 2001). Whether
clear evidence exists to rebut the presumption of regularity is a question of law that the Court
reviews de novo. See Clark v. Nicholson, 21 Vet.App. 130, 133 (2007).
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In this case, Mr. Kyhn contends that he never received notice of his scheduled March 2006
VA audiological examination and argues that the presumption of regularity cannot be applied to the
facts of his case to establish that he received notice of his scheduled examination. To support his
argument, he points to the following as evidence sufficient to rebut the presumption of regularity:
(1) The record is devoid of anything that reflects that VA mailed that notice or that he ever received
notice of the scheduled examination; (2) VA adjudicated his hearing loss claim erroneously believing
that he had not submitted evidence in support of the claim; and (3) VA maintains an "Appeal
Certification Worksheet" that was not completed upon remand from the Board. Appellant's (App.)
Br. at 5-8.
Mr. Kyhn is correct that in the record on appeal there is no copy of VA's notice to him of his
scheduled audiological examination. See R. at 1-590. However, there is no requirement for that
document to be contained in the record for the presumption of regularity to apply. In Butler v. West,
the appellant argued that, because a copy of the notice of appellate rights was not contained in the
record, the Court could not presume that it was mailed. Butler v. West, No. 98-2073, 1999 WL
1063300 (Vet. App. Nov. 8, 1999), aff'd sub nom. Butler v. Principi, supra. The Court disagreed,
noting that the record contained notice of the RO's decision, which stated that the notice of appellate
rights was attached; the Court held that "[b]ased on the presumption of regularity, it is presumed that
the [Agency of Original Jurisdiction (AOJ)] properly discharged its responsibility and attached a
notice of appellate rights to the letter sent to the appellant." Id. at *1. Although Mr. Kyhn's case
may be distinguished from Butler, in that here there is no document indicating that the notice of
examination was attached, the record does contain the examination cancellation notice that states that
the "veteran failed to report for exam on 3/7/06, notification was mailed to 2341 2nd Ave, Boelus,
N[ebraska,] 68820. POA [(Power of Attorney)]/Berry was also notified." R. at 557. Mr. Kyhn does
not contend that the address listed was not that of his residence at the time. See App. Br. at 1-16.
Further, in August 2009, the Court ordered the Secretary to provide the Court with
information concerning the regular process by which VA notifies veterans of scheduled VA
examinations. In response, the Secretary indicates that the RO prepares an examination request that
is electronically communicated by the RO to the VA medical center (VAMC) in whose primary
service area the veteran resides. Secretary's Response at 3. The examination request is given to "a
5
scheduling clerk who inputs the examination request into the Automated Medical Information
Exchange [AMIE] system" and then, "[u]sing the information from the AMIE system, the scheduling
clerk electronically generates a letter to the veteran which informs him of the scheduled examination,
including its time and location." Id. at 3-4. The Secretary states that the "examination notifications
are generated through the Veterans Information Systems and Technology Architecture . . . software"
and the automatically generated letter is then mailed from the VAMC to the veteran and his/her
POA, if any. Id. The Secretary notes that "[b]ecause the letter is electronically generated by the
Outputs Options computer system program, a hard copy of the letter is not retained by the VAMC
or filed in the claims folder." Id. The Secretary further states that "[w]hile a file copy of the original
letter can not be produced, in an effort to provide a complete response to the Court's order, the
Secretary has been able to regenerate from electronic records a copy of the letter that was sent." Id.
at 2. Attached to the Secretary's response is a letter dated August 28, 2009, that states that Mr. Kyhn
was scheduled for a VA examination on March 7, 2006. Id., Exhibit 3.
Accordingly, because the regular practices of VA do not include maintaining a hard copy of
the veteran's notice of his/her scheduled VA examination, the absence of any such copy from the
claims file cannot be used as evidence to demonstrate that that notice was not mailed. Here, the
record reflects that the RO followed the regular process for scheduling an examination and notifying
the appellant of that examination. The record establishes that on February 3, 2006, the RO requested
that the VAMC schedule the appellant for an audiology examination. R. at 574-75. On
February 11, 2007, a scheduling clerk at the VAMC entered that examination request into AMIE.
See Declaration of Jo Ellen Bash, Compensation and Pension Program Manager at the VA Nebraska-
Western Iowa Care System. Because the record contains evidence that the RO followed its
procedure for requesting and scheduling a medical examination and because the examination
cancellation notice stated that notification of the examination was mailed to the veteran at his
address, it may be presumed that the VAMC electronically generated and mailed Mr. Kyhn notice
of the scheduled examination at his address of record. Thus, because (1) the record contains
evidence that the audiological examination was requested and that request was entered into AMIE,
and (2) the examination cancellation notice states that notification of the examination was mailed
to the veteran at his address, as in Butler it may be presumed that the Secretary discharged his duties
6
by mailing to Mr. Kyhn notice of the scheduled examination and did in fact mail that notice. See
Butler and Ashley, both supra.
Concerning Mr. Kyhn's argument that VA adjudicated his hearing loss claim erroneously
believing that he had not submitted evidence in support of that claim, the evidence of record reveals
that, in response to the RO's August 1998 denial of service connection for hearing loss, Mr. Kyhn
filed an NOD and submitted medical evidence revealing a diagnosis of hearing loss that was believed
to be related to service. R. at 96-99. The RO issued an SOC stating that it had not received any
evidence from Mr. Kyhn in response to a request for information after its August 1998 denial of his
claim. R. at 105. Mr. Kyhn informed the RO that he had submitted evidence with his NOD and the
RO subsequently corrected its decision and awarded service connection for hearing loss. Although
Mr. Kyhn is correct that the RO adjudicated his claim assuming that he had not submitted evidence
in support of it, that error pertains to the RO's adjudication of his claim for hearing loss and not the
tinnitus claim presently at issue. Mr. Kyhn has not persuaded the Court that prior adjudicative errors
in a separate matter constitute clear evidence to rebut the presumption of regularity applicable to his
tinnitus claim.
Mr. Kyhn also contends that the absence of a completed "Appeal Certification Worksheet"
in conjunction with his remanded claim is evidence that rebuts the presumption of regularity. He
maintains that the lack of this document demonstrates that VA did not adjudicate his claim in a
"normal" fashion. There is contained in the record an "Appeal Certification Worksheet," dated
April 15, 2005, prior to the Board's January 2006 remand decision. R. at 535-37. Thus, it appears
that Mr. Kyhn is arguing that VA had a duty to complete a second "Appeal Certification Worksheet"
prior to returning his claim to the Board after its January 2006 remand decision.
When a claimant indicates the desire to appeal an unfavorable RO decision to the Board, the
VA Adjudication Procedures Manual (M21-1MR) provides for a series of steps for VA to take to
ensure that the case is ready for appeal. Upon review of the claims folder, a decision review officer
(DRO) "verifies that all issues on appeal have been decided," determines whether the "appropriate
development has been initiated and properly disposed of, and completes the certification worksheet."
M21-1MR, pt. I, ch. 5, sec. F (2007). Thereafter, the DRO completes a "VA Form 8, Certification
of Appeal." Id. Section 19.35 of title 38, Code of Federal Regulations, requires that a VA Form 8
7
must be completed in every appeal to the Board. 38 C.F.R. § 19.35 (2009) (providing that after
"receipt of a timely Substantive Appeal, the [AOJ] will certify the case to the Board . . . .
Certification is accomplished by the completion of VA Form 8). However, nothing in the
regulations governing this issue requires VA to prepare a second VA Form 8 for remanded claims
that are returned to the Board. Indeed, 38 C.F.R. § 19.38 provides:
When a case is remanded by the Board of Veterans' Appeals, the agency of original
jurisdiction will complete the additional development of the evidence or procedural
development required. Following completion of the development, the case will be
reviewed to determine whether the additional development, together with the
evidence which was previously of record, supports the allowance of all benefits
sought on appeal. If so, the appellant and his or her representative, if any, will be
promptly informed. If any benefits sought on appeal remain denied following this
review, the agency of original jurisdiction will issue a Supplemental Statement of the
Case concerning the additional development pertaining to those issues in accordance
with the provisions of [38 C.F.R.] § 19.31 of this part. Following the 30-day period
allowed for a response to the Supplemental Statement of the Case pursuant to Rule
of Practice 302, paragraph (c) (§ 20.302(c) of this chapter), the case will be returned
to the Board for further appellate processing unless the appeal is withdrawn or review
of the response to the Supplemental Statement of the Case results in the allowance
of all benefits sought on appeal. Remanded cases will not be closed for failure to
respond to the Supplemental Statement of the Case.
38 C.F.R. § 19.38 (2009).
Further, the M21-1MR establishes steps VA must take regarding claims remanded from the
Board. It does not require VA to prepare a second VA Form 8 or an additional "Appeal Certification
Worksheet" prior to returning the matter to the Board. Rather, if evidence is received on the
remanded claim, but the benefit sought cannot be granted, the M21-1MR indicates to "note the
following in the 'Remarks' block of VA Form 8, Certification of Appeal filed in the claims folder:
"Determination of [date shown in the "Date" block] confirmed." M21-1MR, pt. I, ch. 5, sec. G
(2005). If no evidence was received, the RO is to note the following in the "Remarks" block of the
VA Form 8: "The appellant, and his/her representative, has failed to submit evidence requested in
[Board] remand within the prescribed period, and the attached claims folder is returned for
appellate consideration on the basis of the evidence of record." Id.
Accordingly, because there is neither a regulatory requirement that VA complete an "Appeal
Certification Worksheet," nor do VA's internal procedures require that VA undertake such action a
8
second time when a claim is on remand, the absence of a second "Appeal Certification Worksheet"
in the record cannot rise to the level of clear evidence to rebut the presumption of regularity
concerning notice of the scheduled examination. As such, the evidence offered by Mr. Kyhn does
not constitute clear evidence to rebut the presumption of regularity and, thus, it is presumed that VA
mailed to him notice of his scheduled March 2006 VA audiological examination.
Further, even if the Court were to assume that these claimed irregularities occurred as alleged
by Mr. Kyhn, the Court would still not be persuaded that these irregularities, coupled together, are
sufficient to rebut the presumption of regularity. Although in Sthele, supra, this Court held that
multiple irregularities involved with the appellant's appeal coupled with his assertion that he had not
received a copy of a Board decision constituted clear and unmistakable evidence to rebut the
presumption of regularity, this case is distinguishable from Sthele. In Sthele, the Court found that
the appellant's claims file contained documents related to his son's claim for dependent educational
assistance (DEA) that were improperly addressed to the appellant as though he were the claimant
in the DEA claim and that some of these documents were mailed by the RO to the appellant at his
son's address, which was different from the address the appellant had provided VA in connection
with his service-connection claims. Sthele, 19 Vet.App. at 17-18. These irregularities left the Court
"with serious doubt as to whether the Board's decision was mailed to the appellant at his last known
address." Id. at 18. Here, however, because the Court has found that there is a regular process for
mailing notice of scheduled examinations and there is evidence that VA followed this process, Mr.
Kyhn's other arguments, even if the Court were to consider them irregularities, do not leave the Court
with a "serious doubt" as to whether the notice of the scheduled medical examination was mailed
to the appellant at his last known address. Id. As such, the evidence offered by Mr. Kyhn of other
irregularities could not constitute clear evidence to rebut the presumption of regularity and, thus, it
is presumed that VA mailed to him notice of his scheduled March 2006 VA audiological
examination.
Having presumed that notice was indeed mailed, and finding that Mr. Kyhn had not presented
"good cause" for his failure to report for the scheduled examination, the Board adjudicated the claim
on the evidence of record and determined that service connection was not warranted. See 38 C.F.R.
§ 3.655(a), (b) (providing for actions to be taken when an appellant, "without good cause, fails to
9
report" for a VA medical examination). Section 3.655(b) of title 38, Code of Federal Regulations,
instructs that for reopened claims, "[w]hen a claimant fails to report for an examination . . ., the
claim shall be denied." 38 C.F.R. § 3.655(b). The Court thus holds that the Board was correct in
denying, and indeed was compelled by § 3.655(b) to deny, Mr. Kyhn's tinnitus claim. See 38 C.F.R.
§ 3.655(b); see also Wood v. Derwinski, 1 Vet.App. 190, 193 (1991) ("The duty to assist is not
always a one-way street.").
Moreover, even if Mr. Kyhn did not receive notice of his scheduled March 2006 VA
examination, he was made aware of that examination and the consequences of his failure to report
to it in the RO's March 2006 SSOC. R. at 580. Thereafter, Mr. Kyhn indicated that he had no
further information to submit. At no time prior to the Board's May 2007 decision did Mr. Kyhn
assert that he had not received notice of his scheduled VA examination, despite having the
opportunity to do so.
C. Board's Statement of Reasons or Bases
The Board's determination of service connection is reviewed under the "clearly erroneous"
standard of review set forth in 38 U.S.C. § 7261(a)(4). See Rose v. West, 11 Vet.App. 169, 171
(1998). Therefore, "if there is a 'plausible' basis in the record for the factual determinations of the
[Board]," the Court cannot overturn them even if it might not have reached the same conclusion in
the first instance. Gilbert v. Derwinski, 1 Vet.App. 49, 53 (1990). As with all of its decisions, the
Board is required to include in its decision a written statement of the reasons or bases for its findings
and conclusions on all material issues of fact and law presented on the record; that statement must
be adequate to enable an appellant to understand the precise basis for the Board's decision, as well
as to facilitate informed review in this Court. See 38 U.S.C. § 7104(d)(1); Allday v. Brown,
7 Vet.App. 517, 527 (1995); Gilbert, 1 Vet.App. at 56-57.
Mr. Kyhn argues that the Board's denial of service connection is not supported by an adequate
statement of reasons or bases because the Board improperly discounted evidence favorable to his
claim and failed to take into consideration certain lay statements. Mr. Kyhn's argument, however,
overlooks the regulatory provisions governing the disposition of reopened claims when a claimant
fails to report for a medical examination. Section 3.655 of title 38, Code of Federal Regulations,
provides in pertinent part:
10
(a) General. When 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.
(b) Original or reopened claim, or claim for increase. 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. When the examination was
scheduled in conjunction with . . . a reopened claim for a benefit which was
previously disallowed . . . the claim shall be denied.
38 C.F.R. § 3.655. Accordingly, upon finding that Mr. Kyhn had not demonstrated good cause for
failing to report for his scheduled VA audiological examination, the Board should have denied his
reopened claim for tinnitus in accordance with § 3.655 rather than adjudicating the tinnitus claim on
the merits. Although the Board's adjudication of Mr. Kyhn's claim on the merits contradicted the
regulatory requirement to deny the claim, the Board's ultimate conclusion–that service connection
for tinnitus is not warranted–is not clearly erroneous and, thus, any inadequacies in the Board's
statement of reasons or bases for its denial of Mr. Kyhn's claim on the merits would constitute
nonprejudicial error because under § 3.655(b) he was properly denied service connection for tinnitus.
See 38 U.S.C. § 7261(b)(2) (providing that Court shall take due account of rule of prejudicial error);
Conway v. Principi, 353 F.3d 1369, 1375 (Fed. Cir. 2004); see also Sabonis v. Brown, 6 Vet.App.
426, 430 (1994) (holding that where law and not evidence is dispositive, claim should be denied or
appeal terminated because of lack of legal merit or lack of entitlement under the law); 38 C.F.R.
§3.655(b).
D. Secondary Service Connection
Mr. Kyhn further asserts that the Board erred by failing "to consider whether the service
connection bilateral hearing loss, rated at 50[%], was a source of aggravation." App. Br. at 13. The
Court construes this as an argument that the Board failed to consider service connection for tinnitus
on a secondary basis. A disability may be service connected on a secondary basis by demonstrating
that that disability is either (1) "proximately due to or the result of [an already] service-connected
disease or injury," 38 C.F.R. § 3.310, or (2) aggravated by an already service-connected disease or
injury, "whether or not the additional impairment is itself a separate disease or injury caused by the
service-connected condition," Allen v. Brown, 7 Vet.App. 439, 448 (1995) (en banc).
11
The Secretary asserts that because Mr. Kyhn has raised this matter for the first time in his
brief to the Court, the Board did not err in failing to address whether he was entitled to service
connection for hearing loss based on aggravation. The Court agrees. Although Mr. Kyhn now
contends that the Board should have considered whether his service-connected hearing loss
aggravated his non-service-connected tinnitus, he points to nothing in the record demonstrating that
the issue of whether his hearing loss aggravated his tinnitus was reasonably raised. Accordingly, he
has not demonstrated that it was error for the Board not to address that issue. See Hilkert v. West,
12 Vet.App. 145, 151 (1999) (en banc) (appellant has burden of demonstrating error); compare
Sondel v. Brown, 6 Vet.App. 218, 220 (1994) (when issue is not reasonably raised, Board is not
required to "conduct an exercise in prognostication"), with Carpenter v. West, 11 Vet.App. 140, 146-
47 (1998) (Board must review all issues reasonably raised by liberal reading of appeal). Further, the
Court's jurisdiction is limited to consideration of final decisions of the Board. See 38 U.S.C.
§§ 7252(a) (Court has exclusive jurisdiction to review final Board decisions), 7266(a) (claimant must
appeal final decision of Board to obtain Court's review). Accordingly, the Court declines to address
Mr. Kyhn's argument in this regard. See Maggitt v. West, 202 F.3d 1370, 1377-78 (Fed. Cir. 2000)
(issues presented for first time on appeal may be addressed, disregarded, or remanded back to Board
for further development).
III. CONCLUSION
Upon consideration of the foregoing analysis, the record on appeal, and the parties' pleadings,
the May 17, 2007, Board decision is AFFIRMED.
12