Case: 21-1810 Document: 18 Page: 1 Filed: 09/16/2021
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`NOTE: This disposition is nonprecedential.
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`United States Court of Appeals
`for the Federal Circuit
`______________________
`
`RICHARD A. PROCEVIAT,
`Claimant-Appellant
`
`v.
`
`DENIS MCDONOUGH, SECRETARY OF
`VETERANS AFFAIRS,
`Respondent-Appellee
`______________________
`
`2021-1810
`______________________
`
`Appeal from the United States Court of Appeals for
`Veterans Claims in No. 20-5432, Judge Michael P. Allen.
`______________________
`
`Decided: September 16, 2021
`______________________
`
`RICHARD A. PROCEVIAT, Elma, Manitoba, Canada, pro
`se.
`
` BRENDAN DAVID JORDAN, Commercial Litigation
`Branch, Civil Division, United States Department of Jus-
`tice, Washington, DC, for respondent-appellee. Also repre-
`sented by BRIAN M. BOYNTON, CLAUDIA BURKE, MARTIN F.
`HOCKEY, JR.; Y. KEN LEE, BRYAN THOMPSON, Office of Gen-
`eral Counsel, United States Department of Veterans Af-
`fairs, Washington, DC.
`
`

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`Case: 21-1810 Document: 18 Page: 2 Filed: 09/16/2021
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`2
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`PROCEVIAT v. MCDONOUGH
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` ______________________
`
`Before MOORE, Chief Judge, PROST and STOLL, Circuit
`Judges.
`
`PER CURIAM.
`Richard A. Proceviat appeals an order of the United
`States Court of Appeals for Veterans Claims dismissing in
`part and denying in part Mr. Proceviat’s petition for a writ
`of mandamus. S.A. 1–3.1 For the reasons below, we vacate
`and remand.
`
`I
`On March 20, 2018, the Department of Veterans Af-
`fairs (VA) examined Mr. Proceviat in connection with his
`claim for service-connected disability compensation. Ulti-
`mately, the medical examiner opined that Mr. Proceviat’s
`rheumatoid arthritis is not service connected. Although
`the medical opinion is not in the record, the VA claims the
`examiner relied on medical literature indicating there is no
`known cause for rheumatoid arthritis. S.A. 57. Based on
`the medical examiner’s opinion, the VA denied Mr. Proce-
`viat’s claim.
`In February 2019, Mr. Proceviat filed a notice of disa-
`greement. He questioned the VA examiner’s qualifications
`and, therefore, requested copies of “the VA examiner[’]s
`curriculum vitae [CV], [the] examination notes and the spe-
`cific medical literature that was relied upon.” S.A. 20. He
`also requested an independent medical opinion. S.A. 22.
`For more than a year, the VA attempted to determine
`the specific appeals process that Mr. Proceviat selected,
`i.e., whether the appeal would proceed under the legacy
`system or the Veterans Appeals Improvement and
`
`
`“S.A.” refers to the supplemental appendix filed
`1
`with the government’s brief.
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`

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`Case: 21-1810 Document: 18 Page: 3 Filed: 09/16/2021
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`PROCEVIAT v. MCDONOUGH
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`3
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`Modernization Act of 2017, Pub. L. No. 115-55, 131 Stat.
`1105. Throughout that process, Mr. Proceviat repeated his
`request for documents and an independent medical opin-
`ion. It was not until March 11, 2020, however, that the VA
`regional office even requested the examiner’s CV. And it
`did not, at that time, request any other documentation.
`That “request was misrouted and a follow-up request that
`was to be done two weeks after the March 11 request was
`not scheduled due to an administrative oversight.” S.A. 9
`(citing S.A. 15–17). Thus, Mr. Proceviat was not provided
`with the requested documents.
`On July 27, 2020, Mr. Proceviat petitioned the Veter-
`ans Court for a writ of mandamus. S.A. 4–5. He requested
`an order compelling the VA to provide him with the exam-
`iner’s CV, the examination notes, and “the specific medical
`literature that was relied upon.” S.A. 4. He also requested
`the Veterans Court compel an independent medical opin-
`ion. Id. That is, Mr. Proceviat sought the relief he had re-
`quested (in nearly identical terms) about a year-and-a-half
`earlier.
`Interpreting the petition as requesting only the exam-
`iner’s CV, the Veterans Court ordered the VA to respond.
`S.A. 76. A week later, the VA re-requested the examiner’s
`CV and then mailed it to Mr. Proceviat. S.A. 72–75. Be-
`cause it had provided Mr. Proceviat that CV, the VA ar-
`gued Mr. Proceviat’s mandamus petition was moot.
`S.A. 9–12. The Veterans Court agreed and dismissed
`Mr. Proceviat’s petition. S.A. 77.
`Mr. Proceviat sought reconsideration, arguing that his
`initial request quite clearly was for more than just the ex-
`aminer’s CV. S.A. 77. The Veterans Court, then, ordered
`the VA to respond to Mr. Proceviat’s request for examina-
`tion notes and medical literature. A month later, the VA
`mailed Mr. Proceviat a letter noting no examination notes
`exist and providing Mr. Proceviat a weblink to a general
`repository of medical literature. S.A. 88. Based on that
`
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`Case: 21-1810 Document: 18 Page: 4 Filed: 09/16/2021
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`PROCEVIAT v. MCDONOUGH
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`letter, the VA again argued Mr. Proceviat’s request for doc-
`uments was moot. It also argued that Mr. Proceviat could
`request an independent medical opinion through the ordi-
`nary appellate process. Thus, in the VA’s view, that por-
`tion of Mr. Proceviat’s petition should have been denied.
`The Veterans Court agreed on both grounds. S.A. 1–3.
`It determined that “the Secretary [had] complied with
`[Mr. Proceviat’s] requests for the examiner’s CV, medical
`literature, and medical notes.” S.A. 2. Thus, it dismissed
`Mr. Proceviat’s request for an order to compel the produc-
`tion of documents as moot. It also determined that
`Mr. Proceviat could raise his request for an independent
`medical opinion during his direct appeal. Because
`Mr. Proceviat had an alternative means to obtain his de-
`sired relief, the Veterans Court denied this portion of
`Mr. Proceviat’s petition. Mr. Proceviat sought reconsider-
`ation, which the Veterans Court denied, and a panel deci-
`sion, which a three-judge panel granted. The panel
`adopted the single-judge order. Mr. Proceviat appeals.
`II
`We begin with Mr. Proceviat’s partial challenge to the
`Veterans Court’s mootness holding. Appellant’s Informal
`Br. at 4–5. We review de novo the Veterans Court’s reso-
`lution of legal questions, including whether a petition for
`mandamus is moot. 38 U.S.C. § 7292(d)(1) (We “shall de-
`cide all relevant questions of law . . . .”); see also Maggitt v.
`West, 202 F.3d 1370, 1374 (Fed. Cir. 2000) (“The jurisdic-
`tional reach of the Veterans Court presents a question of
`law for our plenary review.”). For a petition to be moot
`based on the VA providing the requested relief, the claim-
`ant must have “receive[d] all [his] requested relief.” Mote
`v. Wilkie, 976 F.3d 1337, 1342 (Fed. Cir. 2020) (emphasis
`added). When a decision “did not provide all of the relief
`. . . requested, . . . a case or controversy remains.” Id.
`Mr. Proceviat requested the VA provide him with “the
`specific medical literature that was relied upon” to deny his
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`Case: 21-1810 Document: 18 Page: 5 Filed: 09/16/2021
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`PROCEVIAT v. MCDONOUGH
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`5
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`claim for service connection. S.A. 20. Yet the VA only pro-
`vided him with a weblink to a general repository of medical
`literature. S.A. 88. On appeal, Mr. Proceviat argues that
`he was unable to access the requested medical literature at
`that link: “VA provided me with a website link to the med-
`ical lit[erature] . . . which I clicked . . . but did not see the
`specific medical lit[erature] that was relied upon.” Infor-
`mal Br. at 4. And on this record, we cannot even determine
`whether
`those articles are available at www.up-
`todate.com.2 In short, Mr. Proceviat has not been provided
`all his requested relief.
`Accordingly, his request for the specific medical litera-
`ture relied upon is not moot. Mote, 976 F.3d at 1342. To
`be clear, we do not address the merits of Mr. Proceviat’s
`request. That is, we offer no opinion on whether the VA is
`obligated, under the statutory and regulatory framework,
`to comply with Mr. Proceviat’s request for the specific jour-
`nal articles. Nor do we foreclose the possibility that the VA
`will take further actions (e.g., mailing Mr. Proceviat phys-
`ical copies of the medical literature) that will indeed moot
`Mr. Proceviat’s request. But as of now, based on the record
`before this court, the VA has not provided Mr. Proceviat all
`of his requested relief. Accordingly, the Veterans Court
`erred in holding this portion of Mr. Proceviat’s petition was
`moot.
`
`III
`We next consider Mr. Proceviat’s challenge to the Vet-
`erans Court’s denial of mandamus for an independent med-
`ical opinion. Appellant’s Informal Br. at 6–9. We have
`
`
`2 This failure is indicative of a broader failure to pro-
`vide the court with a complete record. Many important
`documents, like the medical examiner’s report and the Vet-
`erans Court’s interlocutory orders, were not included in the
`VA’s supplemental appendix.
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`Case: 21-1810 Document: 18 Page: 6 Filed: 09/16/2021
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`PROCEVIAT v. MCDONOUGH
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`“jurisdiction to review the [Veterans Court]’s decision
`whether to grant a mandamus petition that raises a non-
`frivolous legal question.” Beasley v. Shinseki, 709 F.3d
`1154, 1158 (Fed. Cir. 2013). When a mandamus claim is
`based on unreasonable delay, the Veterans Court must ap-
`ply the six-factor test adopted in Martin v. O’Rourke, 891
`F.3d 1338, 1344–45 (Fed. Cir. 2018). Failure to consider
`those factors, often called the TRAC factors, is legal error.
`See, e.g., Mote, 976 F.3d at 1345.
`Mr. Proceviat requested a writ of mandamus because
`he had “not received . . . any mention of an [independent
`medical opinion].” S.A. 5. We see two possible interpreta-
`tions of that request, which are not mutually exclusive.
`First, Mr. Proceviat may have been requesting a writ com-
`pelling the VA to provide him an independent medical opin-
`ion. Second, Mr. Proceviat may have been requesting a
`writ compelling the VA to issue a decision on his request
`for an independent medical opinion. We are required,
`given Mr. Proceviat’s pro se status, to interpret his filings
`liberally. Comer v. Peake, 552 F.3d 1362, 1368 (Fed. Cir.
`2009); cf. Erickson v. Pardus, 551 U.S. 89, 94 (2007). So we
`treat Mr. Proceviat’s request as seeking both forms of re-
`lief.
`We see no legal error under the first interpretation of
`Mr. Proceviat’s request. As the Veterans Court held,
`Mr. Proceviat is free to seek an independent medical opin-
`ion in his direct appeal. And mandamus is available only
`when a petitioner lacks adequate alternative means to ob-
`tain the desired relief. Cheney v. U.S. Dist. Court, 542 U.S.
`367, 380–81 (2004).
`But the Veterans Court failed to apply the correct legal
`framework under the second interpretation. At no point
`did that court consider or apply the TRAC factors to
`Mr. Proceviat’s request. Instead, it denied mandamus be-
`cause Mr. Proceviat “has an alternative means to obtain
`his desired relief.” S.A. 3. But that reflects a fundamental
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`Case: 21-1810 Document: 18 Page: 7 Filed: 09/16/2021
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`PROCEVIAT v. MCDONOUGH
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`misunderstanding of unreasonable delay claims. A veteran
`who is claiming the VA has failed to render a timely deci-
`sion cannot seek relief through direct appeal. He must pe-
`tition for a writ of mandamus before the Veterans Court to
`obtain that relief. And Mr. Proceviat did just that, as we
`interpret his request. Therefore, to resolve Mr. Proceviat’s
`unreasonable delay claim, the Veterans Court was obli-
`gated to apply the TRAC factors. See Mote, 976 F.3d at
`1345. And we remand for it to fulfill that obligation.3
`Again hereto the VA could moot this portion of the petition
`by issuing a decision on Mr. Proceviat’s request for an in-
`dependent medical opinion—a decision that he is still wait-
`ing for more than two-and-one-half years after he
`requested it.
`
`IV
`Because the VA committed legal errors in both its hold-
`ings, the Veterans Court’s opinion is
`VACATED AND REMANDED
`COSTS
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`Costs to Mr. Proceviat.
`
`
`It is worth noting that at many points throughout
`3
`this process the adjudicator (VA and Veterans Court) fum-
`bled Mr. Proceviat’s requests. The Secretary in fact
`acknowledged the VA’s poor handling of the matter.
`S.A. 7–9. It is our hope that, recognizing the repeated de-
`lays and fumbles, the VA will act promptly to resolve this
`case.
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`