Beasley v. Shinseki

• Decision Date: 11 March 2013
• Docket Number: No. 2012–7029.,2012–7029.
• Citation: 709 F.3d 1154
• Parties: Johnnie H. BEASLEY, Jr., Claimant–Appellant, v. Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent–Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

709 F.3d 1154

Johnnie H. BEASLEY, Jr., Claimant–Appellant,

v.Eric K. SHINSEKI, Secretary of Veterans Affairs, Respondent–Appellee.

No. 2012–7029.

United States Court of Appeals, Federal Circuit.

March 11, 2013.

Kenneth M. Carpenter, Carpenter, Chartered, of Topeka, KS, argued for claimant-appellant.

Alex P. Hontos, Trial Attorney, Commercial Litigation 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, 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 Counsel and Martie Adelman, Attorney, United States Department of Veterans Affairs, of Washington, DC.

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

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 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 “[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, 124 S.Ct. 2576, 159 L.Ed.2d 459 (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.

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, 124 S.Ct. 2576;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.

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 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 Fed.Appx. 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]...