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

______________________

JOHNNIE H. BEASLEY, JR.,

Claimant

- Appellant,

v.

Eric K. Shinseki, SECRETARY OF VETERANS AFFAIRS, Respondent

- Appellee.

______________________

2012

- 7029

______________________

Appeal from the United States Court of Appeals for

Veterans Claims in No. 11

- 1931, Judge Robert N. Davis.

______________________

Decided: March 11 , 2013

______________________

K ENNETH M. C ARPENTER , Carpenter, C hartered, of Topeka, Kansas, argued for claimant

- appellant.

A LEX P. H ONTOS , Trial Attorney, Commercial Litig ation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for respondent

appellee. O n the brief were S TUART F. D ELERY , Acting Assistant Attorney General, J EANNE E. D AVIDSON , Dire ctor, M ARTIN F. H OCKEY

, J R

. , Assistant Director, and

N ELSON R. R ICHARDS , Tr i a l Attorney. Of counsel on the

brief were D AVID J. B ARRANS , Deputy Assistant GeneralBEASLEY v. DVA 2

Counsel and M ARTIE A DELMAN , A ttorney, United States Department of Veterans Affairs, of Washington, DC.

______________________

Before N EWMAN , B RYSON , and O’ M ALLEY

, Circuit Judges

. Opinion for the court filed by Circuit Judge B RYSON

. Opinion concurring in part and dissenting in pa rt filed by Circuit Judge N EWMAN

.

B RYSON

, Circuit Judge

.

I

Johnnie H. Beasley, Jr., is a veteran of the War in V ietnam who suffers from Post

- Traumatic Stress Disorder (“PTSD”). After initially denying his claim for benefits, the Department of Veterans Aff airs (“DVA”) found in 1992 that Mr. Beasley’s PTSD was service

- connected and granted him a disability rating of 30 percent, effective July 23, 1990. In 1997, the DVA found that Mr. Beasley’s PTSD entitled him to a rating of total disability based upon ind ividual unemployability (“TDIU”) with an effe ctive date of June 5, 1996. In 2006, the DVA modified the effective date for Mr. Beasley’s TDIU rating to September 12, 1994, and in 2008 it rated Mr. Beasley as 100 percent disabled due to PTSD, effective Janu ary 1, 1994.

In 2010 the Board of Veterans’ Appeals found clear and unmistakable error in the initial rating of Mr. Beasley’s PTSD disability in 1992 and revised the effe ctive date of that disability to July 18, 1987. The Board directed the regional offic e on remand to determine Mr. Beasley’s disability rating from that effective date and to identify the effective date of his TDIU rating in light of the effective date of his disability. The Board further directed the regional office to “consider whether t he Veteran . . . should undergo a clinical evaluation and/or retrospective medical evaluation to ascertain the severityBEASLEY v. DVA 3

of PTSD since July 18, 1987.” Following a medical eval uation, the regional office rated Mr. Beasley as 50 percent disabled by PTSD, eff ective July 18, 1987. 1

On March 11, 2011, Mr. Beasley’s attorney sent a le tter to his DVA treating physician, requesting an opinion that would support Mr. Beasley’s efforts to obtain a “70% rating for his PTSD from May 1985 and a tota l rating from January 1, 1992.” The letter attached Mr. Beasley’s medical records from 1985 to 1994, along with four lay affidavits regarding Mr. Beasley’s condition and behavior
after he returned from Vietnam. Those affidavits had not previously been submitted to the DVA.

A DVA attorney replied by letter and explained that the DVA had directed the physician not to respond to the request from Mr. Beasley’s counsel. The letter expressed concern that permitting a DVA treating physician to provide the evaluation Mr. Beasley sou ght would present
“a conflict of interest.” It cited Veterans Health Admi nistration (“VHA”) Directive 2008

- 071, paragraph 4d, which counsels VHA physicians “to avoid conflict of inte rest and ambiguity” when dealing with veterans’ requests
for medical stat ements. The directive states in subpar agraph (I) that VHA providers “often do not have access to military medical records, and may not be familiar with all the health issues specific to military service

. . . . As a result, they may not feel comfortable in stating causality of a current condition.” Subparagraph (2) adds that

1 Mr. Beasley appealed that decision to the Board. On January 9, 2012, the Board found that the effective date of service connection for Mr. Beasley’s PTSD was May 13, 1985. The Board remanded the case to the regional office to decide a new effective dat e for his TDIU rating in light of the new effective date for his PTSD. The Board’s 2012 ruling post

- dates the decision that is the subject of this appeal.BEASLEY v. DVA 4

“[r]equests by a veteran for assistance in completing a VA disability claim are to be referred to [the Veterans Ben efits Administration] through official channels.” The DVA
attorney ’s letter advised that if Mr. Beasley wished to continue to press his claim for an increased rating, he “should follow the appropriate appeals procedure outlined in [the] decision” by the regional office.

Mr. Beasley then petitioned the Court of Appeals fo r Veterans Claims (“CAVC”) for a writ of mandamus orde ring the DVA to direct the treating physician “to provide an opinion letter that would assist Mr. Beasley in su bstantiating the nature and extent of his service connected disability for the purpose of e valuating his disability for rating purposes.” Mr. Beasley argued that the Secretary’s refusal to allow the DVA treating physician to provide a medical opinion in light of his newly submitted lay ev idence breached the DVA’s duty to assist under 38 U.S.C. § 5103A(a)(1).

The CAVC denied the petition, noting that Mr. Beasley had failed to satisfy any of the three requir ements for the extraordinary relief of mandamus. See Cheney v. U.S. Dist. Court , 542 U.S. 367, 380

– 81 (2004). First, the court explained t hat Mr. Beasley had not shown that he had a clear and indisputable right to the writ.
The CAVC noted that 38 U.S.C. § 5103A(d)(1) requires the DVA to obtain a medical opinion when it is needed to decide a veteran’s claim, but that it does not entitle the veteran to a medical opinion by a DVA treating physician of the veteran’s choice. Second, the CAVC held that Mr. Beasley had failed to show why an appeal to the Board would not provide an adequate alternative means to obtain the relief he sought. Third, the CAVC observed that Mr. Beasley had not identified any other special circumstances relating to his case that would warrant granting the writ. Mr. Beasley appealed to this court from that ruling.BEASLEY v. DVA 5

II

The government’s threshold argument is that this

court lacks jurisdiction to decide Mr. Beasley’s appeal. Because this court lacks jurisdiction to review a “cha llenge to a law or regulation as applied to the facts of a particular case,” 38 U.S.C. § 7292(d)(2), the government urges us to dismiss Mr. Beasley’s appeal.

We reject the government’s jurisdictional argument. Mr. Beasley’s claim on the merits is that the DVA’s duty to assist, as set out in 38 U.S.C. § § 5103A(a)(1) and 5103A(d)(1), includes an obligation to provide the sort of retrospective medical op inion, based on lay evidence not submitted to the Board, that he is seeking from his DVA treating physician. As such, his claim raises a question regarding the scope of the legal obligation imposed on the DVA under section 5103A. That is a legal issue th at we have jurisdiction to decide under section 7292(d)(1).

Mr. Beasley’s choice to present that legal question in a petition for mandamus does not deprive this court of jurisdiction. A request for relief by way of mandamus is a claim of legal entitlement to a particular remedy. To obtain that remedy, 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 o f 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). The resolution of those issues determines the availability of the extraordinary remedy of mandamus in th e event the petitioner esta blishes a legal injury. Addressing the issues that bear on the availability of that remedy does not require consider ation of the factual merits of a veteran’s claim or the ma nner in which a rule governing veterans’ benefits has been applied to particular facts.BEASLEY v. DVA 6

We have previously held that 38 U.S.C. § 7292(d)(2), the statutory provision that bars this court from ente rtaining “a challenge to a law or regulation, as applied to the facts of a particular case,” seems to address “pr imarily the laws and regulations relating to veterans cases that the [CAVC] applies and administers. It is unlikely that it
was intended to insulate from our review that court’s decisions under the All Writs Act,” including whether to grant the remedy of mandamus. Lamb v. Principi , 284 F.3d 1378, 1381 (Fed. Cir. 2002). Although section 7292(d)(2) prevents this court from reviewing “the factual

details of veterans ’ benefits cases, such as whether the veteran’s disability is service connected, when it bega n, and the extent of the disability,” there is no indication that “Congress intended to insulate from judicial review [the CAVC’s] ruling on mandamus petitions.” Id. at

1381

– 82.

At one point in its brief, the government seems to suggest that the question whether a petitioner has an adequate alternative remedy would inherently require the application of law to fact. That suggestion, which would potentially deprive this court of ju risdiction in all ma ndamus cases, is contrary to Lamb and to this court’s consistent practice of exercising jurisdiction over mand amus petitions that raise legal issues otherwise within our jurisdiction. This court first recognized the CAVC’s jurisdiction to issue the writ of mandamus in Cox v. West

, 149 F.3d 1360 (Fed. Cir. 1998), and we have subsequently reviewed the CAVC’s exercise of that jurisdiction. See,

e.g.
, Bates v. Nicholson , 398 F.3d 1355, 1366 (Fed. Cir. 2005) (directing the CAVC to issue wri t of mandamus). In

Cox itself, this court reviewed a CAVC decision denying mandamus, vacating and remanding the CAVC’s dete rmination on the issue of adequate alternative means. 149

F.3d at 1365

– 66.

In support of its jurisdictional argument, the gover nment points to two non

- precedential decisions of this courtBEASLEY v. DVA 7

dismissing a veteran’s appeal from the denial of mand amus as a challenge to the CAVC’s factual findings, or to that court’s application of law to fact. Those non

precedential decisions, however, are not helpful to the
government.

In the first of those cases, Gebhart v. Peake , 289 F. App’x 402 (Fed. Cir. 2008), we dismissed an appeal from the denial of a mandamus petition to compel the Secr etary to comply with a Board remand order. The CAVC

had he ld that “[t]he Secretary has complied with the terms of the Board’s remand without unreasonable delay.”

Id. at 403. On appeal, the petitioner failed to even “a ddress the decision of the Veterans Court denying his petition for mandamus.” Id. Under those circumstances, we reasoned that the petitioner was simply objecting to the speed of the Secretary’s actions. The disputed legal questions had been resolved by the Board, and the pet itioner identified no legal right that required protection through a writ of mandamus.

In the second of the government’s two cases, Morgan
v. Shinseki , 428 F. App’x 974 (Fed. Cir. 2011), we di smissed an appeal regarding a mandamus petition to compel the Secretary to answer a veteran’s claim of clear

and unmistakable error. Th e CAVC concluded that “a review of the Secretary’s response and its attachments reveals that the Secretary has not refused to adjudicate the petitioner’s claim.” Id. at 975. As in Gebhart , the

veteran in Morgan raised a factual dispute and “fail[ed] to

a llege any legal error.” Id. at 976. Mr. Beasley, by co ntrast, presents a legal question as to the proper interpr etation of a statute. 2

2 O ther non

- precedential decisions in which this court has dismissed appeals from CAVC decisions d enying mandamus petitions are distinguishable from this case on similar grounds, as they all involved petitions directed toBEASLEY v. DVA 8

The government argues that we cannot review the CAVC’s decision in this case without determining whether

the medical ex amination Mr. Beasley had already r eceived was insufficient. For example, the parties dispute whether the medical examination Mr. Beasley received was actually retrospective, i.e., whether it focused on the proper time frame at issue in his claim. But th at mi scharacterizes the legal issue that Mr. Beasley raises. Mr. Beasley contends that, regardless of the accuracy or quality of his previous examination, he was entitled to a second examination from his treating physician conside ring previously undisclos ed lay evidence, a procedure that the parties agree he did not receive. In reviewing the CAVC’s decision on the petition for mandamus, this court must ask whether the DVA appeals process provides an adequate alternative mechanism for Mr. Beasley to assert that right. If a legal question such as the one Mr. Beasley presents is not within this court’s jurisdiction, it is not

clear when we could ever review the CAVC’s determin ation not to issue a writ of mandamus.

This court has jurisdiction to review the CA VC’s dec ision whether to grant a mandamus petition that raises a

non

- frivolous legal question, such as the one Mr. Beasley presents. We 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. In conducting such a review, we do not interfere with the CAVC’s role as the final appellate arbiter of the facts underlying a veteran’s claim or the application of veterans’ benefits law to the particular facts of a veteran’s

case.

factual issues or raising frivolous legal claims. See, e.g.

, Sabbia v. Shinseki , 370 F. App’x 102 (Fed. Cir. 2010);

Scott v. Shinseki , 355 F. App’x 426, 429 (Fed. Cir. 2009);

Woznick v. Peake , 327 F. App’x 884, 885 (Fed. Cir. 2008); Perry v. Peake , 280 F. App’x 981, 983 (Fed. Cir. 2008)

.BEASLEY v. DVA 9

III

On the merits, Mr. Beasley did not establish that he
was entitled to a writ of mandamus as a matter of law. First, he failed to show that he had a clear right to the relief he was seeking. His petition requested an order compelling th e Secretary to direct Mr. Beasley’s DVA treating physician to conduct a retrospective medical examination. But neither section 5103A(a)(1) nor section 5103A(d)(1) imposes an open

- ended obligation on the DVA to provide a medical examination or opinion upon d emand; section 5103A(d)(1) states that the duty to assist requires the DVA to provide a medical examination “when such an examination . . . is necessary to make a decision

on the claim.” The Board’s June 2010 remand order required the regional office t o “consider” providing a clinical evaluation, a retrospective medical evaluation, or both. The DVA conducted a medical examination purs uant to both its statutory duty and the remand order; it is not indisputably clear that Mr. Beasley’s new lay evidence

e ntitles him to a second medical examination as a matter
of law.

Moreover, Mr. Beasley has failed to show a lack of a dequate alternative means to obtain the relief he seeks. He concedes that “[t]he appeals process can require [the DVA], after considerable delay, to provide the requested assistance.” Therefore, even treating Mr. Beasley’s legal claim as limited to requesting that the regional office or the Board consider his newly submitted lay evidence, mandamus is still inappropriate. After filing the pe tition at issue here, Mr. Beasley received an earlier effective

date for service connection for his PTSD, and the Board remanded the issue of his TDIU rating for further consi deration. Those events reflect the manner in which claims are typically processe d and reevaluated when a veteran brings new evidence to light on appeal. See 38 C.F.R. § 20.302(b)(2). Mr. Beasley may be frustrated by the lengthy history of his case, but he has not shown that heBEASLEY v. DVA 10

has been uniquely burdened by the duration of the a ppeal s process, and he points to no other special circu mstances that would justify issuance of the writ in his case. He argues that the DVA is acting unlawfully by denying him his requested retrospective examination, but that allegation does not distinguish hi s position from that of any other veteran who claims that the DVA failed to assist him. Those contentions are properly addressed to the Board on appeal.

Granting Mr. Beasley’s mandamus petition, although it would advance his case, would necessarily displa ce other cases that are awaiting adjudication, and it would thereby delay the disposition of the claims of other vete rans who have followed the prescribed procedures of the veterans’ benefits system. If adopted more broadly, Mr. Beasley’s argument could l ead to the widespread use of the writ of mandamus as a substitute for the ordinary appeals process mandated by Congress, at least in cases

in which the veteran claims that the DVA breached its duty to assist. That is not a result that would be beneficial to the system as a whole, and it is certainly not one contemplated by Congress. Accordingly, we hold that the CAVC did not commit legal error in denying the petition
for a writ of mandamus in this case.

AFFIRMED

.

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

______________________

JOHNNIE H. BEASLEY, JR.,

Claimant

- Appellant,

v.

Eric K. Shinseki, SECRETARY OF VETERANS AFFAIRS, Respondent

- Appellee.

______________________

2012

- 7029

______________________

Appeal from the United States Court of Appeals for

Veterans Claims in 11

- 1931, Judge Robert N. Davis.

______________________ N EWMAN

, Circuit Judge , concurring in part, dissentin g in
part.

I agree that this court has jurisdiction to receive this mandamus petition. My concern is with the decision on that petition.

Veteran Beasley asked the VA physician who had previously examined him, to consider the veteran’s add itional evidence of symptoms he exhibited after service, and to present the physician’s opinion to the VA. The VA, through counsel, instructed the physician not to respond to the request; VA counsel explained to the veteran’s

counsel:

I have instructed Dr. Denker not to r espond to your inquiry. Determinations of causality andBEASLEY v. DVA 2

disability are exclusively a function of the Vete rans Benefits Administration (VBA). This is an a djudication function and VA providers do not have

access to all relevant information to make such a

d etermination plus it presents a conflict of inte rest. See, VHA Directive 2008

- 071, paragraph 4d, dated October 29, 2008.

Letter from Assistant Regional Counsel, Dept. of Veterans Affairs, to Attorney for Mr. Beasley (April 8, 2011). The cited paragraph 4 d of the VHA Directive states:

When honoring requests for medical statements by veterans for VA claims adjudication, care must be taken to avoid conflicts of interest or ambigu ity.

VHA Directive 2008

- 071 (Oct. 29, 2008). Here, the phys ician was instructed not to “honor the request” for a med ical opinion, stating that “it presents a conflict of interest.” Is the VA preventing the VA physician from presenting an opinion that could favor the veteran, on the theory that such an opinion presents a conflict of interest? This

cannot be correct.

My colleagues on this panel ratify the VA’s position on other grounds, also flawed. The court offers the excuse that Mr. Beasley, by requesting a medical opinion directly from a VA doctor who knew him, was seeking prefer ence over other veterans. It is hard to see how either the VA or the veteran is served by requiring this veteran to go to the end of the line and start again with a new doctor, rather than permitting the same doctor to review the additional

evidence.

The issue is not whether this court has authority to issue a writ of mandamus in veterans’ appeals. Of course we have mandamus authority. The issue is whether the Department of Veterans Affairs can prohibit a veteran’s VA physician from reviewing the veteran ’s evidence ofBEASLEY v. DVA 3

service connection, lest the physician’s opinion present a “conflict of interest.” This cannot be what Congress intended by the “duty to assist,” 38 U.S.C. § 5103A(a)(1).

The petition for mandamus should be granted. From my colleagues’ con trary ruling, I respectfully dissent.