  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
2                                           BEASLEY    v. DVA
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.
4                                           BEASLEY   v. DVA
“[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
10                                           BEASLEY   v. DVA
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.
