       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

                 PETER W. HUNT,
                 Claimant-Appellant,

                           v.

 ERIC K. SHINSEKI, Secretary 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. Moor-
man.
               ______________________

                 Decided: May 7, 2014
                ______________________

   PETER W. HUNT, of Interlochen, Michigan, pro se.

    JEFFREY A. REGNER, Trial Attorney, Commercial Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, for respondent-appellee.
With him on the brief were STUART F. DELERY, Assistant
Attorney General, JEANNE E. DAVIDSON, Director, and
SCOTT D. AUSTIN, Assistant Director. Of counsel on the
brief were Y. KEN LEE, Deputy Assistant General Coun-
2                                         HUNT   v. SHINSEKI



sel, and CHRISTA A. SHIRBER, Attorney, United States
Department of Veterans Affairs, of Washington, DC.
                ______________________

    Before DYK, CLEVENGER, and WALLACH, Circuit Judges.
PER CURIAM.
    Peter W. Hunt appeals from the final decision of the
United States Court of Appeals for Veterans 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) (“Veterans 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 regional 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 hypertension, 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
the left ear, rated at 0%. On December 7, 1977, a notifica-
tion 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 deci-
sions, he was obligated to file a Notice of Disagreement
(“NOD”), after the receipt of which the RO would prepare
a Statement of the Case (“SOC”), a document that initi-
HUNT   v. SHINSEKI                                         3



ates the veteran’s appeal to the Board of Veterans’ Ap-
peals (“BVA”). Mr. Hunt avers that on December 21, 1977
he did timely file a NOD with regard to the two rating
decisions.
     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 commu-
nications 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 submit-
ted to the agency included a “Notice 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 earlier
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 communications concerning the
status of a NOD were with respect to his education bene-
fit 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
for disability benefits.” The agency further requested Mr.
Hunt to clarify and identify the disabilities stemming
from exposure to chemicals in Vietnam, which had been
referenced in the original 1977 claims. The agency con-
firmed that it would “process a claim for these conditions
as appropriate.” The record before us does not indicate
4                                          HUNT   v. SHINSEKI



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 ex-
traordinary relief by way of a writ of mandamus in the
Veterans Court. The theory underlying Mr. Hunt’s peti-
tion is that the agency in fact received his NOD of De-
cember 21, 1977, and then failed to issue him a SOC after
the receipt of which he could pursue relief 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 man-
damus petition 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 its 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 Opinion at 1 (citing Kerr v. U.S.
Dist. Court, 426 U.S. 394, 402 (1976)). The Veterans
Court recited the standard tests that each must be satis-
fied before issuance of a mandamus writ: (1) the petition-
er 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. Conse-
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 manda-
mus 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 stated 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 pre-
sents a legal question, to be sure, but a court may need to
resolve factual issues in deciding if the three tests are
met. In any event, whether the statutory benefit of the
doubt applies in a mandamus proceeding is a legal ques-
tion sufficient to sustain our jurisdiction over this appeal.
See 38 U.S.C. § 7292(c). Mr. Hunt’s § 5107(b) argument,
were it successful, would 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 raise
6                                        HUNT   v. SHINSEKI



with the [agency], such as a claim to reopen a previously
denied claim.” Sec’y Brief 15. Based on these representa-
tions, 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
agree with the Secretary.
     As the agency has stated to Mr. Hunt, it stands ready
to process expeditiously any claim he wishes to file re-
garding 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 applica-
tion” 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 evidence
that his NOD was in fact filed in 1977, and, if he pre-
vailed 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 of the Veterans Court in
this case.
                      CONCLUSION
    The order of the Veterans Court denying the petition
for mandamus is
                      AFFIRMED
                         COSTS
    No costs.
