N OTE : This disposition is nonprecedential.


# United States **Court of Appeals**  **for the Federal Circuit**

______________________
PATRICK FRANK BRYAN, Claimant

- Appellant

v.

ROBERT A. MCDONALD, SECRETARY OF VETERANS AFFAIRS, Respondent

- Appellee

______________________

2015

- 7010

______________________
Appeal from the United States Court of Appeals for Veterans Claims in No. 14

- 1088, Chief Judge Bruce E. Kasold.

______________________

D ecided: June 19, 2015

______________________

J ARED L EVINSON , The Veterans Law Office of Jared Levinson, P.C., Easton, MD, argued for claimant

appellant.

A MANDA T ANTUM , Commercial Litigation Branch, Ci vil Division, United States Department of Justice, Washington, DC, argued for respondent

- appellee. Also represented by B ENJAMIN C. M IZER
, R OBERT E.
K IRSCHMAN
, J R
., A LLISON K IDD -M ILLER ; Y. K EN L EE
,BRYAN v. MCDONALD 2

M EGHAN A LPHONSO
, Office of General Counsel, United States Department of Veterans Affairs, Washington, DC.

______________________

Before N EWMAN
, L OURIE
, and C HEN
, Circuit Judges.

C HEN
, Circuit Judge

Patrick F. Bryan petitions for review of the Court of Appeals for Veterans Claims (Veterans Court) order denying his petition for writ of mandamus. Bryan v. Gibson , No. 14

- 1088, 2014 WL 3747034 (Vet. App. July 30, 2014) ( Order ). In his underlying claim, Mr. Bryan seeks a service connection for loss of maxilla under 38 C.F.R. § 4.150, Diagnostic Code (DC) 9914

, dating back to 1978. Mr. Bryan also seeks increased di sability benefits for his traumatic brain injury (TBI), post

- traumatic stress disorder (PTSD), and scarring. Because we agree that Mr. Bryan failed to demonstrate that he lacks alternative means to obtain relief, we affirm in part

. And because Mr. Bryan’ s remaining arguments fall outside our juri sdiction, we dismiss in part.

I. B ACKGROUND
Mr. Bryan served on active duty in the United States Marine Corps from April 1973 to March 1977. Service treatment record s indicate that Mr. Bryan suffered var ious inj uries arising out of an automobile accident in August 1973, and from being struck in the head by a hatch door while aboard the USS Guam (LPH

- 9) in March
1975.

In a January 9, 1979 rating decision, he was granted a service connection for residual lacera tions of the lower lip and scalp, residual fracture on the fourth and fifth metacarpals of the right hand, and inguinal hernia. Supplemental Appendix (S.A.) 113. Each condition was rated as noncompensable with an effective date of N ovember 29, 1978. Id

. Around that time, h e was alsoBRYAN v. MCDONALD 3

granted service connection for dental trauma for trea tment purposes only. S.A. 114.

Mr. Bryan subsequently filed numerous claims and appeals claiming service connection s for multiple inj uries. 1 The Board of Veterans Appe als (Board) issued a decision on February 22, 2013 addressing, inter alia , the service connection claims at issue here. In particular, the decision found that Mr. Bryan had properly raised the issue of whether his loss of maxilla warranted a service connection. But because the Regional Office (RO) had not yet adjudicated that claim, the Board remanded with instructions that the RO take appropriate action. S.A. 32. The Board also examined Mr. Bryan’s TBI, PTSD, and scarring claims, but found they should be remanded to the RO for further development as well

. S.A. 54

– 56.

On August 5, 2013, t he RO issued a statement of the case denying entitlement to an initial evaluation in excess of ten percent for both the TBI and PTSD. S.A. 80. The next day, on August 6, 2013, the RO issued a suppl emental statement of the case denying a compen sable evaluation for scarring. S.A. 106. The decision also addressed Mr. Bryan’s loss of maxilla claim. The RO noted that a June 4, 2013 VA examination had found no loss of supporting bone, maxilla, or mandible. S.A. 109 (“[A]ll maxillary bone is clini cally and radiologically present.”). The RO thus denied service connection for loss of maxilla. Id . (“Loss of teeth without loss of mandible or maxilla is not considered a disability for compensation purposes.”).

1 The history of Mr. Bryan’s various claims and a ppeals after the 1979 decision is unclear from the record.
I t appears that Mr. Bryan resumed seeking benefits , at the latest, around 2002

. See S.A. 33 (referencing Febr uary 2002 rating decisi on).BRYAN v. MCDONALD 4

On April 10, 2014, Mr. Bryan filed a pe tition with the Veterans Court for extraordinary relief in the form of a writ of mandamus. Mr. Bryan petitioned the Veterans Court to find a service connection for loss of maxilla under Diagnostic Code 9914 beginning in 1978. He also claimed that the RO erred in assessing his claims for benefits relating to his TBI, PTSD, and scarring. In addition to arguing the merits of these claims, Mr. Bryan contended that mandamus was necessary to remedy the RO’s “u nconscionable” delay in addressing his claims. S.A . 18.

The Veterans Court denied Mr. Bryan’s petition in a July 30, 2014 order, noting that mandamus is warranted when, for example, the Secretary refuses

— or his actions amount to a refusal

— to process a claim, and the petitio ner has no alternative means o f relief. Veterans Court Order at *1 (citing Constanza v. West , 12 Vet. App. 133, 134 (1999) and Cheney v. U.S. Dist. Court , 542 U.S. 367,
380

– 81 (2004)). The Veterans Court determined that mandamus was not warranted with respect to Mr. Br yan’s various c laims because he had not demonstrated that he will be unable to use the normal appeals process to obtain the relief sought. Id . at *1

– 2.

Mr. Bryan now appeals to this Court.

II. D ISCUSSION

A

Our jurisdiction to review decisions of the Veterans Court is limited by statute. Guillory v. Shinseki , 603 F.3d 981, 986 (Fed. Cir. 2010). We have jurisdiction over “all relevant questions of law, including interpreting constit utional and stat utory prov isions.” 38 U.S.C. § 7292(d)(1). We lack jurisdiction over any “challenge to a factual determination” or “challenge to a law or regulation as applied to the facts of a particular case” absent a constit utional issue. 38 U.S.C. § 7292(d)(2). We set aside a Veterans Court decision only if it is “arbitrary, capricious,BRYAN v. MCDONALD 5

an abuse of discretion, or otherwise not in accordance with law. . . .” 38 U.S.C. § 7292(d)(1)(A).

To obtain mandamus, the petitioner must show (1) that he has a clear legal right to relief; (2) that there are no adequate alternative legal channels through which the petitioner may obtain that relief, and (3) that the grant of mandamus relief is appropriate under the circumstances. See Cheney , 542 U.S. at 380

– 81; Hargrove v. Shinseki , 629 F.3d 1377, 1378 (Fed. Cir. 2011). Moreover, the issuance of a writ of mandamus is “ in large part a matter of discr etion with the court to which the petition is address ed. ” Kerr v. U. S. Dist. Court for N. Dist. of Calif

. , 426 U.S. 394, 403 (1976) (citations omitted).

B

As a preliminary matter, the government contends that we must dismiss this appeal for lack of jurisdiction. We disagree in part . The government’s po sition on a ppeals of mandamus denials has already been rejected by this court’s decision in Lamb v. Principi , 284 F.3d 1378, 1381 (Fed. Cir. 2002). In response to a similar jurisdi ctional argument advanced by the government in this case

, this court determ ined that although Congress intended the Veterans Court to be the final arbiter of all factual issues, “[t]here is no indication, however, that in thus limiting our jurisdiction, Congress intended to insulate from judicial review that court's ruling on man damus petitions.” Id . at 1382. This court has thus consistently exercised jurisdiction over mandamus petitions that raise legal questions within our jurisdiction. See, e.g., Beasley v. Shinseki , 709 F.3d 1154, 1158 (Fed. Cir. 2013); Lamb

, 284 F.3d at 13 81

– 82; Cox v. West , 149 F.3d 1360, 1365

– 66 (Fed. Cir. 1998). In doing so, “[w]e may not review the factual merits of the veteran’s claim, but we may dete rmine whether the petitioner has satisfied the legal stan dard for issuing the writ.” Beasley , 709 F.3d at 1158.BRYAN v. MCDONALD 6

C

Mr. Bryan has not shown that he was entitled to a writ of mandamus as a matter of law. Importantly, Mr. Bryan fails to show that he lacks alternative means to obtain the relief he seeks. Although he acknowledges there is a mechanism for c hallenging the RO decision, i.e., appeal to the Board, he contends that it would be “futile” to seek relief through that process. Reply Br. at 13. Underlying this contention is Mr. Bryan’s belief that the RO has failed to address his claims in a timely m anner.

T he record indicates that the RO has recently taken action on Mr. Bryan’s claims. On February 20, 2015, after the appeal to this court was filed, the RO issued a new rating decision addressing Mr. Bryan’s claims. In partic ular, t he RO found that Mr. Bryan was entitled to a 10% service connection for injuries related to his loss of maxi lla claim, an increase from 10% to 30% for his PTSD, and an increase from 10% to 30% for his scarring. S.A. 117

– 18. The RO also found that the claim for increased eval uation due to TBI should be deferred for further examin ation. S.A. 124

– 25.

While Mr. Bryan may be frustrated with the speed at which his case is being adjudicated, he has not shown a refusal to act by the Secretary

— effective or otherwise

. We note that a different outcome would not be warranted even if the February 20, 2015 rating decision had not been issued. As the Veterans Court correctly noted, “‘the extraordinary writs cannot be used as substitutes for appeals, even though hardship may result from delay and perhaps unnecessary trial.’” Lamb , 284 F.3d at 1384 (quoting Bankers Life & Cas. Co. v. Holland, 346 U.S. 379, 383 (1953)).

D

We have examined Mr. Bryan’s remaining arguments and find them beyond the scope of our jurisdiction. ForBRYAN v. MCDONALD 7

exampl e, Mr. Bryan raises various arguments that are clearly factual in nature, e.g., whether the RO correctly assessed his various claims, and thus unreviewable by this court. See, e.g., Cayat v. Nicholson , 429 F.3d 1331, 1333 (Fed. Cir. 2005) (“We may not rev iew findings of fact or application of law to the facts [.]”).

Mr. Bryan also makes various arguments that do not involve a claim for veteran benefits. For example, he raises claims sounding in tort, e.g., the “gross misconduct” of the RO and Board has caused him irrepa rable emotio nal harm. The Veterans Court did not have jurisdiction to grant Mr. Bryan’s petition as to those claims and neither does this court. See 38 U.S.C. § 7104 (describing the Board’s jurisdiction)

. Accordingly, we hold that the Veterans Court did not abuse its discretion or otherwise commit legal error in denying Mr. Bryan’s petition for writ of mandamus. We also hold that Mr. Bryan’s remaining claims are outside of this court’s jurisdiction and are dismissed.

C ONCLUSION

We affirm the order of the Veterans Court denying the petition for mandamus and dismiss in part Mr. Bryan’s appeal.

AFFIRMED IN PART and DISMISSED IN PART

C OSTS

No costs.