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 

______________________

KENNETH M. CARPENTER, Carpenter, Chartered, of 

Topeka, Kansas, argued for claimant-appellant. 

ALEX P. HONTOS, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of 

Justice, of Washington, DC, argued for respondentappellee. On the brief were STUART F. DELERY, Acting 

Assistant Attorney General, JEANNE E. DAVIDSON, Director, MARTIN F. HOCKEY, JR., Assistant Director, and 

NELSON R. RICHARDS, Trial Attorney. Of counsel on the 

brief were DAVID J. BARRANS, Deputy Assistant General 
2 BEASLEY v. DVA

Counsel and MARTIE ADELMAN, Attorney, United States 

Department of Veterans Affairs, of Washington, DC. 

______________________

Before NEWMAN, BRYSON, and O’MALLEY, Circuit Judges.

Opinion for the court filed by Circuit Judge BRYSON. 

Opinion concurring in part and dissenting in part filed by 

Circuit Judge NEWMAN.

BRYSON, Circuit Judge.

I

Johnnie H. Beasley, Jr., is a veteran of the War in Vietnam who suffers from Post-Traumatic Stress Disorder 

(“PTSD”). After initially denying his claim for benefits, 

the Department of Veterans Affairs (“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 individual unemployability (“TDIU”) with an effective 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 January 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 effective date of that disability to July 18, 1987. The Board 

directed the regional office 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 the 

Veteran . . . should undergo a clinical evaluation and/or 

retrospective medical evaluation to ascertain the severity 
 BEASLEY v. DVA 3

of PTSD since July 18, 1987.” Following a medical evaluation, the regional office rated Mr. Beasley as 50 percent 

disabled by PTSD, effective July 18, 1987.1

On March 11, 2011, Mr. Beasley’s attorney sent a letter 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 total 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 sought would present 

“a conflict of interest.” It cited Veterans Health Administration (“VHA”) Directive 2008-071, paragraph 4d, 

which counsels VHA physicians “to avoid conflict of interest and ambiguity” when dealing with veterans’ requests 

for medical statements. The directive states in subparagraph (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 date 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.

 
4 BEASLEY v. DVA

“[r]equests by a veteran for assistance in completing a VA 

disability claim are to be referred to [the Veterans Benefits 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 for 

Veterans Claims (“CAVC”) for a writ of mandamus ordering the DVA to direct the treating physician “to provide 

an opinion letter that would assist Mr. Beasley in substantiating the nature and extent of his service connected 

disability for the purpose of evaluating 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 evidence 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 requirements for the extraordinary relief of mandamus. See

Cheney v. U.S. Dist. Court, 542 U.S. 367, 380–81 (2004). 

First, the court explained that 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 “challenge 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 opinion, 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 that 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 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). The resolution of those 

issues determines the availability of the extraordinary 

remedy of mandamus in the event the petitioner establishes a legal injury. Addressing the issues that bear on 

the availability of that remedy does not require consideration of the factual merits of a veteran’s claim or the manner in which a rule governing veterans’ benefits has been 

applied to particular facts. 
6 BEASLEY v. DVA

We have previously held that 38 U.S.C. § 7292(d)(2), 

the statutory provision that bars this court from entertaining “a challenge to a law or regulation, as applied to 

the facts of a particular case,” seems to address “primarily 

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 began, 

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 jurisdiction in all mandamus cases, is contrary to Lamb and to this court’s 

consistent practice of exercising jurisdiction over mandamus 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 writ of mandamus). In 

Cox itself, this court reviewed a CAVC decision denying 

mandamus, vacating and remanding the CAVC’s determination on the issue of adequate alternative means. 149 

F.3d at 1365–66.

In support of its jurisdictional argument, the government points to two non-precedential decisions of this court 
 BEASLEY v. DVA 7

dismissing a veteran’s appeal from the denial of mandamus as a challenge to the CAVC’s factual findings, or to 

that court’s application of law to fact. Those nonprecedential 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 Secretary to comply with a Board remand order. The CAVC 

had held 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 “address 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 petitioner 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 dismissed an appeal regarding a mandamus petition to 

compel the Secretary to answer a veteran’s claim of clear 

and unmistakable error. The 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 

allege any legal error.” Id. at 976. Mr. Beasley, by contrast, presents a legal question as to the proper interpretation of a statute.2

2 Other non-precedential decisions in which this 

court has dismissed appeals from CAVC decisions denying 

mandamus petitions are distinguishable from this case on 

similar grounds, as they all involved petitions directed to 

 
8 BEASLEY v. DVA

The government argues that we cannot review the 

CAVC’s decision in this case without determining whether 

the medical examination Mr. Beasley had already received 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 that mischaracterizes 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 considering previously undisclosed 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 determination not to issue a writ of mandamus.

This court has jurisdiction to review the CAVC’s decision 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 the 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 demand; 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 to “consider” providing a 

clinical evaluation, a retrospective medical evaluation, or 

both. The DVA conducted a medical examination pursuant to both its statutory duty and the remand order; it is 

not indisputably clear that Mr. Beasley’s new lay evidence 

entitles him to a second medical examination as a matter 

of law.

Moreover, Mr. Beasley has failed to show a lack of adequate 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 petition 

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 consideration. Those events reflect the manner in which claims 

are typically processed 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 he 
10 BEASLEY v. DVA

has been uniquely burdened by the duration of the appeals process, and he points to no other special circumstances 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 his 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 displace 

other cases that are awaiting adjudication, and it would 

thereby delay the disposition of the claims of other veterans who have followed the prescribed procedures of the 

veterans’ benefits system. If adopted more broadly, Mr. 

Beasley’s argument could lead 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.

______________________

NEWMAN, Circuit Judge, concurring in part, dissenting 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 additional 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 respond to 

your inquiry. Determinations of causality and 
2 BEASLEY v. DVA

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

access to all relevant information to make such a 

determination plus it presents a conflict of interest. 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 4d 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 ambiguity.

VHA Directive 2008-071 (Oct. 29, 2008). Here, the physician was instructed not to “honor the request” for a medical 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 preference 

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 of 
 BEASLEY 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’ contrary ruling, I respectfully dissent.