NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

PETER W. HUNT,

Claimant-Appellant,

v.

ERIC K. SHINSEKI, Secretary of Veterans Affairs, 

Respondent-Appellee.

______________________ 

2014-7025

______________________ 

Appeal from the United States Court of Appeals for 

Veterans Claims in No. 13-1607, Judge William A. Moorman.

______________________ 

Decided: May 7, 2014

______________________ 

PETER W. HUNT, of Interlochen, Michigan, pro se.

JEFFREY A. REGNER, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department 

of Justice, of Washington, DC, for respondent-appellee. 

With him on the brief were STUART F. DELERY, Assistant 

Attorney General, JEANNE E. DAVIDSON, Director, and 

SCOTT D. AUSTIN, Assistant Director. Of counsel on the 

brief were Y. KEN LEE, Deputy Assistant General Coun-
2 HUNT v. SHINSEKI

sel, and CHRISTA A. SHIRBER, Attorney, United States 

Department of Veterans Affairs, of Washington, DC.

______________________ 

Before DYK, CLEVENGER, and WALLACH, Circuit Judges.

PER CURIAM.

Peter W. Hunt appeals from the final decision of the 

United States Court of Appeals for Veterans Claims 

(“Veterans Court”) denying his petition for a writ of 

mandamus to compel the Secretary of Veterans Affairs 

(“Secretary”) to take action with regard to claims filed by 

Hunt in 1977. Hunt v. Shinseki, No. 13-1607 (Vet. App. 

Sept. 25, 2013) (“Veterans Opinion”). For the reasons set 

forth below, we affirm the final decision of the Veterans 

Court.

I 

Mr. Hunt served on active duty with the Army from 

August 31, 1967 to May 24, 1977. On June 6, 1977, he 

filed a claim for various ailments with a regional office 

(“RO”) of the Department of Veterans Affairs (“agency”). 

By a rating decision dated October 18, 1977, Mr. Hunt 

was granted service connection for old fracture, distal 

phalanx, and left big toe, rated at 0%, and was denied 

service connection for hypertension, glomerulonephritis, 

residual heat strike, chronic nervous condition, and 

neurological condition manifested by neck pain and shiver 

through his back. On December 1, 1977, Mr. Hunt was 

given service connection for high frequency hearing loss of 

the left ear, rated at 0%. On December 7, 1977, a notification letter was sent to Mr. Hunt notifying him of the 

October 18 and December 1 rating decisions.

If Mr. Hunt sought to challenge those rating decisions, he was obligated to file a Notice of Disagreement 

(“NOD”), after the receipt of which the RO would prepare 

a Statement of the Case (“SOC”), a document that initi-
HUNT v. SHINSEKI 3

ates the veteran’s appeal to the Board of Veterans’ Appeals (“BVA”). Mr. Hunt avers that on December 21, 1977 

he did timely file a NOD with regard to the two rating 

decisions.

Mr. Hunt first alerted the agency to his December 21, 

1977 letter in February of 2011. The agency searched its 

files for communications from Mr. Hunt. The agency’s 

records show only that the next communication between 

Mr. Hunt and the agency, following the decision letter of 

December 7, 1977 sent to Mr. Hunt, was a communication 

from Mr. Hunt on March 23, 1978 pertaining to a claim 

for dependents education benefits. In subsequent communications between the agency and Mr. Hunt concerning 

later-filed claims for service connection for other ailments, 

no mention was made by Mr. Hunt of the December 21, 

1977 letter. Mr. Hunt’s letter of February 2, 2011 submitted to the agency included a “Notice of Disagreement 

statement to support disagreement” and a copy of the 

December 21, 1977 letter. 

On June 20, 2013, the agency wrote to Mr. Hunt. The 

agency then referred to a SOC sent on June 18, 2013, 

confirming RO decisions denying Mr. Hunt an earlier 

effective date for previously awarded service connection 

for PTSD. The agency also explained that its search of its 

records revealed no receipt of the December 21, 1977 

letter, with no reference to it until February of 2011, and 

that Mr. Hunt’s only communications concerning the 

status of a NOD were with respect to his education benefit claim. The agency also notified Mr. Hunt that it would 

treat the February 2, 2011 letter and the December 21, 

1977 letter attached thereto as his “intent to file a claim 

for disability benefits.” The agency further requested Mr. 

Hunt to clarify and identify the disabilities stemming 

from exposure to chemicals in Vietnam, which had been 

referenced in the original 1977 claims. The agency confirmed that it would “process a claim for these conditions 

as appropriate.” The record before us does not indicate 
4 HUNT v. SHINSEKI

that Mr. Hunt has taken any steps to proceed with the 

claim contemplated by the June 20, 2013 letter from the 

agency.

II

On June 3, 2013, Mr. Hunt filed a petition for extraordinary relief by way of a writ of mandamus in the 

Veterans Court. The theory underlying Mr. Hunt’s petition is that the agency in fact received his NOD of December 21, 1977, and then failed to issue him a SOC after 

the receipt of which he could pursue relief by appeal to

the BVA. Mr. Hunt’s view is that, but for the failure of the 

agency to issue the SOC, his claims filed in 1977 would 

have been granted positive service connection, with an 

effective date of the 1977 filings. Accordingly, his mandamus petition asked the Veterans Court to compel the 

agency either to grant him the sought benefits or issue 

him the SOC necessary for pursuit of his claim. The 

Veterans Court asked the Secretary for his response to 

Mr. Hunt’s petition. 

The Veterans Court recognized its authority to grant 

relief by way of writ of mandamus, noting that such relief 

“is a drastic one, to be invoked only in extraordinary 

circumstances.” Veterans Opinion at 1 (citing Kerr v. U.S.

Dist. Court, 426 U.S. 394, 402 (1976)). The Veterans 

Court recited the standard tests that each must be satisfied before issuance of a mandamus writ: (1) the petitioner must demonstrate a clear right to the relief sought, (2) 

the petitioner must show that he lacks an alternative 

means to seek the relief sought and (3) the court must be 

convinced that in the circumstances the writ is justified.

See Cheney v. U.S. Dist. Court, 542 U.S. 367, 380-81 

(2004). The Veterans Court agreed with the Secretary’s 

assertion that Mr. Hunt had alternative administrative 

avenues of relief (as the agency had previously notified 

Mr. Hunt by the June 20, 2013 letter), and thus held that 

Mr. Hunt had failed to satisfy the second test. Conse-
HUNT v. SHINSEKI 5

quently, Mr. Hunt’s petition was denied, and he timely 

appealed to this court. We have jurisdiction under 38 

U.S.C. § 7292.

III

On appeal, the theory underlying Mr. Hunt’s mandamus petition remains the same: but for the failure of the 

agency to issue a SOC after receipt of the December 21, 

1977 NOD, he could have perfected his appeal to the BVA.

Without the NOD, the agency had no obligation to issue 

the SOC. Aware of the agency’s explanation that it never 

received the necessary NOD, Mr. Hunt postulates that on 

the issue of whether the agency did in fact receive the 

NOD, the benefit of the doubt rule stated in 38 U.S.C. §

5107(b) applies—with the result that the agency must be 

charged with having received the December 21, 1977, 

NOD. 

The Secretary argues that § 5107(b) does not apply to 

mandamus proceedings because “the Veterans Court does 

not use a preponderance of the evidence standard in 

determining whether to issue such extraordinary relief.”

Sec’y Brief 12. Whether to issue a mandamus writ presents a legal question, to be sure, but a court may need to 

resolve factual issues in deciding if the three tests are 

met. In any event, whether the statutory benefit of the 

doubt applies in a mandamus proceeding is a legal question sufficient to sustain our jurisdiction over this appeal.

See 38 U.S.C. § 7292(c). Mr. Hunt’s § 5107(b) argument, 

were it successful, would also provide satisfaction of the 

first mandamus test, for if the agency had received the 

disputed NOD, Mr. Hunt would be clearly entitled to the 

relief of a SOC. Because Mr. Hunt’s mandamus petition 

fails under the second test, as explained below, we need 

not decide the § 5107(b) question presented by Mr. Hunt.

The Secretary represents to us that Mr. Hunt “ha[s] 

access to RO review for any additional claims relating to 

the December 21, 1977 letter that he would like to raise 
6 HUNT v. SHINSEKI

with the [agency], such as a claim to reopen a previously 

denied claim.” Sec’y Brief 15. Based on these representations, by which the Secretary is bound, the Secretary 

argues that Mr. Hunt fails to meet the “other adequate 

avenue of relief” test for granting a mandamus writ. We 

agree with the Secretary.

As the agency has stated to Mr. Hunt, it stands ready 

to process expeditiously any claim he wishes to file regarding his two 1977 claims. For example, Hunt might 

seek to reopen his 1977 claim on the theory that the VA’s 

failure to provide a SOC vitiated the finality of the 1977 

ratings decisions. We approved that approach in Cook v. 

Principi, where we noted that Veterans Court cases 

allowing claimants to reopen old claims because the VA 

failed to provide a SOC or other document necessary for

direct appeal resulted from a “straightforward application” of the appeal statutes. 318 F.3d 1334, 1340-41 (Fed. 

Cir. 2002) (en banc). Should Mr. Hunt file a claim like 

that, he would have the opportunity to present evidence 

that his NOD was in fact filed in 1977, and, if he prevailed on that showing, he would be entitled to reopen his 

1977 claim. We therefore hold that the Veterans Court 

correctly denied Mr. Hunt’s petition for mandamus, and 

thus affirm the final judgment of the Veterans Court in 

this case.

CONCLUSION

The order of the Veterans Court denying the petition 

for mandamus is

AFFIRMED

COSTS

No costs.