NOTE: This disposition is nonprecedential.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.

______________________ 

Decided: June 19, 2015

______________________ 

JARED LEVINSON, The Veterans Law Office of Jared 

Levinson, P.C., Easton, MD, argued for claimantappellant.

AMANDA TANTUM, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for respondent-appellee. Also 

represented by BENJAMIN C. MIZER, ROBERT E.

KIRSCHMAN, JR., ALLISON KIDD-MILLER; Y. KEN LEE,
2 BRYAN v. MCDONALD

MEGHAN ALPHONSO, Office of General Counsel, United 

States Department of Veterans Affairs, Washington, DC. 

______________________ 

Before NEWMAN, LOURIE, and CHEN, Circuit Judges.

CHEN, 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 disability 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 jurisdiction, we dismiss in part.

I. BACKGROUND

Mr. Bryan served on active duty in the United States 

Marine Corps from April 1973 to March 1977. Service 

treatment records indicate that Mr. Bryan suffered various injuries 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 lacerations 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 November 29, 1978. Id. Around that time, he was also 
BRYAN v. MCDONALD 3

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

Mr. Bryan subsequently filed numerous claims and 

appeals claiming service connections for multiple injuries.1 The Board of Veterans Appeals (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, the 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 supplemental statement of the case denying a compensable 

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 clinically 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 appeals after the 1979 decision is unclear from the record. 

It appears that Mr. Bryan resumed seeking benefits, at 

the latest, around 2002. See S.A. 33 (referencing February 2002 rating decision). 

 
4 BRYAN v. MCDONALD

On April 10, 2014, Mr. Bryan filed a petition 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 “unconscionable” 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 petitioner has no alternative means of 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. Bryan’s various claims 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. DISCUSSION

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 constitutional and statutory provisions.” 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 constitutional 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 discretion with the court to which the petition is addressed.” 

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 position on appeals 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 jurisdictional argument advanced by the government in this case, 

this court determined 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 mandamus 

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 1381–82; 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 determine whether the petitioner has satisfied the legal standard for issuing the writ.” Beasley, 709 F.3d at 1158.
6 BRYAN v. MCDONALD

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 challenging 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 manner. 

The 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 particular, the RO found that Mr. Bryan was entitled to a 10% 

service connection for injuries related to his loss of maxilla 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 evaluation due to TBI should be deferred for further examination. 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. For 
BRYAN v. MCDONALD 7

example, 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 review 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 irreparable emotional 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.

CONCLUSION

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

COSTS

No costs.