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KYHN v. SHINSEKI

No. 2012-7003.

716 F.3d 572 (2013)

Arnold C. KYHN, Claimant-Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent-Appellee.

United States Court of Appeals, Federal Circuit.

May 3, 2013.

Attorney(s) appearing for the Case

Perry A. Pirsch , Berry Law Firm, PC, of Lincoln, Nebraska, argued for the claimant-appellant. Of counsel was Jeanne A. Burke , of Omaha, Nebraska.

Steven M. Mager , Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent-appellee. With him on the brief were Stuart F. Delery , Acting Assistant Attorney General, Jeanne E. Davidson , Director, and Todd M. Hughes , Deputy Director. Of counsel on the brief were Michael J. Timinski , Deputy Assistant General Counsel, and Jonathan E. Taylor , Attorney, United States Department of Veteran Affairs, of Washington, DC.

Dissenting opinion filed by Circuit Judge LOURIE.

WALLACH, Circuit Judge.

Arnold C. Kyhn appeals from the decision of the United States Court of Appeals for Veterans Claims ("Veterans Court") affirming the Board of Veterans' Appeals' ("Board") denial of Mr. Kyhn's tinnitus claim. Kyhn v. Shinseki, 24 Vet.App. 228 (2011) ("Kyhn II"). In particular, Mr. Kyhn challenges the Veterans Court's reliance on affidavits that were not part of the record before the Board. Because the Veterans Court lacked jurisdiction...

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