N OTE : This disposition is nonprecedential.



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

______________________

PETER W. HUNT,
Claimant

- Appellant,

v.

ERIC K. SHINSEKI, S ecretary 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. Moo rman.

______________________

Decided: May 7, 2014

______________________

P ETER W. H UNT , of Interlochen, Michigan, pro se.

J EFFREY A. R EGNER , Trial Attorney, Commercial Lit igation Branch, Civil Division, United States Department
of Justice , of Washington, DC, for respondent -appellee.
With him on the brief were S TUART F. D ELERY , Assistant Attorney General, J EANNE E. D AVIDSON , Director, and
S COTT D

. A USTIN , Assistant Director. Of counsel on the
brief were Y. K EN L EE

, Deputy Assistant Genera l Cou n-HUNT v. SHINSEKI 2

sel

, and C HRISTA A. S HIRBER , Attorney, United States Department of Veterans Affairs, of Washington, DC.

______________________

Before D YK

, C LEVENGER

, and W ALLACH

, Circuit Judges.

P ER C URIAM

. Peter W. Hunt appeals from the final decision of the United States Court of Appeals for Vet erans 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) (“Vet erans 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 regiona l 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 hy pertension, 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

t he left ear, rated at 0%. On December 7, 1977, a notific ation 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 dec isions, he was obligated to file a Notice of Disagree ment (“NOD”), after the receipt of which the RO would prepare a Statement of the Case (“SO C” ), a document that init i-HUNT v. SHINSEKI 3

ates the veteran’s appeal to the Board of Veterans’ A ppeals (“BVA”). Mr. Hunt avers that on December 21, 1977 he did timely file a NOD with regard to the two rating

deci sions.

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 comm unications 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 submi tted to the agency included a “No tice 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 earlie r 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 comm unications concerning the status of a NOD were with respect to his education ben efit 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
f

or disability benefits.” The agency further requested Mr. Hunt to clarify and identify the disabilities stemming from exposure to chemicals in Viet n am, which had been referenced in the original 1977 claims. The agency co nfirmed that it would “process a cla im for these conditions as appropriate.” The record before us does not indicateHUNT v. SHINSEKI 4

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 e xtraord inary relief by way of a writ of mandamus in the
Veterans Court. The theory underlying Mr. Hunt’s pet ition is that the agency in fact received his NOD of D ecember 21, 1977, and then failed to issue him a SOC after the receipt of which he could pursue relie f 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 ma ndamus petitio n 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 i ts 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 O pinion at 1 ( citing Kerr v. U .S.

Dist

. Court , 426 U.S. 394, 402 (1976) ). The Veterans
Court re cited the standard tests that each must be sati sfied before issuance of a mandamus writ: (1) the petitio ner 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. Cons e-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 mand amus 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 stat ed 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 pr esents a legal question, to be sure, but a court may need to resolve factual issues in deciding if the three tes ts are

met. In any event, whether the statutory benefit of the doubt applies in a mandamus proceeding is a legal que stion sufficient to sustain our jurisdiction over this appeal.
See 38 U.S.C. § 7292(c). Mr. Hunt’s § 5107(b) argument, were it successful, w ould 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 raiseHUNT v. SHINSEKI 6

with the [agency], such as a claim to reopen a previously
denied claim.” Sec’y Brief 15. Based on these represent ations, 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

agre e with the Secretary.

As the agency has stated to Mr. Hunt, it stands ready to process expeditiously any claim he wishes to file r egarding 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 applic ation” 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 evidenc e that his NOD was in fact filed in 1977, and

, if he pr evailed 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 o f the Veterans Court in

this case.

C ONCLUSION

The order of the Veterans Court denying the petition
for mandamus is

AFFIRMED

C OSTS

No costs.