It is a deeply held Army belief that no soldier is left behind.
In a decision decided on January 15, 2010, the United States Court of Appeals for Veterans' Claims (USCAVC) ruled that Army veteran Arnold Kyhn's claim for military service connected tinnitus be denied.
Simply put, the USCAVC's rationale for the denial rests on the fact that Kyhn failed to appear for a scheduled VA hearing examination.
"In February 2006, the Lincoln, Nebraska Regional Office forwarded an audiological examination request to the VA Nebraska Western Iowa Health Care System," reads the court's finding.
"That examination was scheduled for March 7, 2006; however, Mr. Kyhn failed to appear for the examination."
Therefore, the USCAVC reasoned, since Kyhn missed a hearing test his appeal for service related tinnitus benefits was denied.
While the USCAVC's decision sounds equitable, it is in fact based on tortured logic that defies understanding.
The ruling argues the VA can deny a claim due to a failure to appear at an examination whether or not the VA sent a notice informing the veteran of the examination (emphasis mine).
"This is just another example of the ‘blame the veteran' mentality we find at the VA - and now at the USCAVC," wrote Larry Scott, founder and editor of VAWatchdog.org, an independent veterans website.
During his appeal, Kyhn contended he never received notice of his scheduled March 2006 examination.
The USCAVC agreed.
"Mr. Kyhn is correct that in the record on appeal there is no copy of VA's notice of him of his scheduled audiological examination."
Although Kyhn was not notified of his examination, the USCAVC then went on to reason "there is no requirement for that document (the notification of an examination) to be contained in the record for the presumption of regularity to apply."
It is "the presumption of regularity" concept upon which the aforementioned tortured logic used by the USCAVC's lawyers came into play.
In the context of Kyhn's contention that he did not receive notice of his scheduled medical examination, the VA made the "presumption of regularity" argument because it is "presumed that government officials ‘have properly discharged their official duties,'" continued the court's findings.
The USCAVC further found the "presumption of regularity is not absolute; however, it may be overcome only by the submission of ‘clear evidence to the contrary.'"
In other words, even though the court agreed that Kyhn did not receive notification of his examination, the court also ruled the VA was not responsible for its error because it was assumed that responsible VA officials had "properly discharged" their duties.
Therefore, Kyhn would have to submit "clear evidence to the contrary" showing that VA officials had been negligent in their responsibilities.
Kyhn could not produce such evidence.
Why? Because the VA is not required to maintain a hard copy of the veteran's notice of his or 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," continued the ruling.
Since it was assumed the VA had acted responsibly (that's the concept of presumption of regularity), and since the VA is not required to keep hard copies of notification of medical examinations (thereby denying Kyhn of any "clear evidence to the contrary" to prove negligence on the part of the VA), the USCAVC denied Kyhn's appeal.
The court's decision appears to be nothing more than tortured reasoning supported by contradictory legalisms designed to leave soldiers like Arnold Kyhn behind.
For more information, visit www.vawatchdog.org.