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 Litiga-
`tion Branch, Civil Division, United States Department of
`Justice, of Washington, DC, argued for respondent-
`appellee. On the brief were STUART F. DELERY, Acting
`Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
`tor, MARTIN F. HOCKEY, JR., Assistant Director, and
`NELSON R. RICHARDS, Trial Attorney. Of counsel on the
`brief were DAVID J. BARRANS, Deputy Assistant General
`
`

`
` BEASLEY v. DVA
`2
`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 Vi-
`etnam 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 effec-
`tive 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 effec-
`tive 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 evalu-
`ation, 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 let-
`ter 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 Admin-
`istration (“VHA”) Directive 2008-071, paragraph 4d,
`which counsels VHA physicians “to avoid conflict of inter-
`est and ambiguity” when dealing with veterans’ requests
`for medical statements. The directive states in subpara-
`graph (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.
`
`

`
` BEASLEY v. DVA
`4
`“[r]equests by a veteran for assistance in completing a VA
`disability claim are to be referred to [the Veterans Bene-
`fits 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 order-
`ing the DVA to direct the treating physician “to provide
`an opinion letter that would assist Mr. Beasley in sub-
`stantiating 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 evi-
`dence 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 require-
`ments 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 “chal-
`lenge 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 estab-
`lishes a legal injury. Addressing the issues that bear on
`the availability of that remedy does not require considera-
`tion of the factual merits of a veteran’s claim or the man-
`ner 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 enter-
`taining “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 man-
`damus cases, is contrary to Lamb and to this court’s
`consistent practice of exercising jurisdiction over manda-
`mus 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 deter-
`mination on the issue of adequate alternative means. 149
`F.3d at 1365–66.
`In support of its jurisdictional argument, the govern-
`ment points to two non-precedential decisions of this court
`
`

`
`
`
` BEASLEY v. DVA
` 7
`dismissing a veteran’s appeal from the denial of manda-
`mus 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 Secre-
`tary 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 “ad-
`dress 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 peti-
`tioner 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 dis-
`missed 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 con-
`trast, presents a legal question as to the proper interpre-
`tation 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 re-
`ceived 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 mis-
`characterizes 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 consider-
`ing 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 determina-
`tion not to issue a writ of mandamus.
`This court has jurisdiction to review the CAVC’s deci-
`sion 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 de-
`mand; 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 pursu-
`ant 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 ad-
`equate 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 consid-
`eration. 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
`
`

`
` BEASLEY v. DVA
`10
`has been uniquely burdened by the duration of the ap-
`peals process, and he points to no other special circum-
`stances 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 veter-
`ans 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 benefi-
`cial 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 addi-
`tional 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 Veter-
`ans Benefits Administration (VBA). This is an ad-
`judication function and VA providers do not have
`access to all relevant information to make such a
`determination plus it presents a conflict of inter-
`est. 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 ambigui-
`ty.
`VHA Directive 2008-071 (Oct. 29, 2008). Here, the physi-
`cian was instructed not to “honor the request” for a medi-
`cal 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.