Walker v. Dept. Of Veterans Affairs , 447 F. App'x 178 ( 2011 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
LEE P. WALKER,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7130
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 11-0610, Judge Lawrence B.
Hagel.
__________________________
Decided: October 13, 2011
__________________________
LEE P. WALKER, of Capitol Heights, Maryland, pro se.
SHELLEY D. WEGER, Attorney, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, of Washington, DC, for respondent-appellee.
With her on the brief were TONY WEST, Assistant Attor-
ney General, JEANNE E. DAVIDSON, Director, and TODD M.
HUGHES, Deputy Director. Of counsel on the brief was
WALKER v. DVA 2
DAVID J. BARRANS, Deputy Assistant General Counsel,
United States Department of Veterans Affairs, of Wash-
ington, DC.
__________________________
Before NEWMAN, MAYER, and O’MALLEY, Circuit Judges.
PER CURIAM.
Lee P. Walker appeals an order of the United States
Court of Appeals for Veterans Claims (“Veterans Court”)
denying his petition for a writ of mandamus. See Walker
v. Shinseki, No. 11-0610, 2011 U.S. App. Vet. Claims
LEXIS 534 (Vet. App. Mar. 16, 2011) (“Veterans Court
Decision”). We affirm.
I.
Walker served on active duty in the United States
Army from September 1960 to September 1962. In 1993,
he submitted a claim seeking service-connected benefits
for hearing loss, but that claim was denied. In 2004, the
Board of Veterans’ Appeals (“board”) denied Walker’s
request to reopen his claim, but in 2006, the Veterans
Court, acting pursuant to a joint motion of the parties,
remanded Walker’s claim to the board for readjudication.
On remand, the board again denied Walker’s claim,
concluding that his left ear hearing loss was not medically
related to his military service.
Walker then appealed to the Veterans Court, arguing
that the Department of Veterans Affairs (“VA”) had
violated its duty, under 38 U.S.C. § 5103A, to assist him
when it failed to obtain his medical treatment records.
Specifically, Walker alleged that the VA had “never
responded” to his requests to obtain medical records
related to the treatment he received for hearing loss at
3 WALKER v. DVA
the Fort Hamilton military hospital in 1962. The Secre-
tary filed a brief response, acknowledging that the VA
had failed to request, or otherwise account for, Walker’s
treatment records from the Fort Hamilton military hospi-
tal. The Secretary further stated that “inasmuch as the
record does not reflect that VA made any effort to assist
[Walker] in obtaining records relevant to his claim, a
remand is necessary to allow further development in
accord with VA’s assistance obligations.” The Veterans
Court thereafter vacated the board’s decision and re-
manded Walker’s claim “for further development in accord
with the duty to assist.”
Walker then appealed to this court, but, in November
2010, his appeal was dismissed after he filed a motion to
withdraw his appeal. In February 2011, the board re-
manded Walker’s claim to a VA regional office (“RO”).
The board’s remand order directed the RO to: (1) request
Walker’s medical records relating to treatment for hear-
ing loss at the Fort Hamilton military hospital from 1962
to the present; (2) notify Walker if such records could not
be located; and (3) readjudicate Walker’s claim seeking
service-connected benefits for hearing loss. Soon thereaf-
ter, Walker filed a petition for extraordinary relief in the
nature of a writ of mandamus with the Veterans Court,
arguing that the remand to obtain records from the Fort
Hamilton military hospital was “another delay[] tactic by
the [board] and a waste of time.”
The Veterans Court denied Walker’s petition for a
writ of mandamus, concluding that the board had prop-
erly remanded his claim to the RO in order to comply with
the court’s order requiring the VA to attempt to obtain
Walker’s medical treatment records. Walker then timely
appealed to this court.
WALKER v. DVA 4
II.
“The remedy of mandamus is a drastic one, to be in-
voked only in extraordinary situations.” Kerr v. U.S. Dist.
Court, 426 U.S. 394, 402 (1976). The writ should not be
issued unless: (1) the petitioner has no other adequate
means to attain the relief he desires; (2) the petitioner can
demonstrate a clear and indisputable right to the issu-
ance of the writ; and (3) the court is convinced that the
circumstances warrant issuance of the writ. Cheney v.
U.S. Dist. Court, 542 U.S. 367, 380-81 (2004).
As the Veterans Court correctly concluded, issuance of
a writ of mandamus was not appropriate here given that
“the administrative appellate process provides Mr.
Walker with an adequate alternative means to the relief
he has requested.” Veterans Court Decision, 2011 U.S.
App. Vet. Claims LEXIS 534, at *6. Walker seeks to
obtain service-connected benefits for hearing loss in his
left ear, and he will have an adequate opportunity to
present his claim to the RO after the VA attempts to
locate his relevant medical records. If the RO issues a
decision adverse to Walker, he retains the right to appeal
to the board, the Veterans Court, and this court. See 38
U.S.C. §§ 7105, 7252, 7266, 7292. Because a writ of
mandamus is “one of the most potent weapons in the
judicial arsenal,” Cheney, 542 U.S. at 380 (citations and
internal quotation marks omitted), it is to be used only
“when no meaningful alternatives are available,” In re
Newman, 763 F.2d 407, 410 (Fed. Cir. 1985).
Walker asserts that remanding his claim to the RO
for purposes of obtaining his medical treatment records
will unnecessarily delay the resolution of his claim. It is
well-established, however, “that the extraordinary writs
cannot be used as substitutes for appeals, even though
hardship may result from delay . . . .” Bankers Life &
5 WALKER v. DVA
Cas. Co. v. Holland, 346 U.S. 379, 383 (1953) (citations
omitted); U.S. Alkali Export Ass’n v. United States, 325
U.S. 196, 202-03 (1945). Initial determinations on factual
questions—such as whether a particular disorder was
incurred or aggravated in service—are generally made by
the RO rather than the board. See Lamb v. Principi, 284
F.3d 1378, 1384 (Fed. Cir. 2002). Here, the remand will
allow the RO to attempt to obtain Walker’s relevant
medical records and to make an informed determination
as to whether his hearing loss was incurred in service.
Walker also contends that the board erred by failing
to address whether or not his medical treatment records
from the Fort Hamilton military hospital had been lo-
cated. The board’s remand order, however, specifically
requires the RO to request those records and to notify
Walker if such records cannot be located.
We likewise reject Walker’s argument that any at-
tempt to locate his medical treatment records would be
futile because the VA has already notified him that those
records are unavailable. In 2003, Walker received a letter
from the VA stating that it had no record that Walker had
visited the audiology department at a VA medical center
in Washington, D.C., in 1978. This letter does not, how-
ever, indicate that the VA has been unable to locate
Walker’s treatment records from the Fort Hamilton
military hospital. To the contrary, the VA has acknowl-
edged that “there appear[] to be outstanding medical
records identified by [Walker] regarding treatment for left
ear hearing loss shortly after his discharge at Fort Hamil-
ton military hospital in Brooklyn, New York, that have
neither been requested nor accounted for by VA.”
The bulk of Walker’s remaining arguments pertain to
the merits of his claim, which is pending on remand.
These arguments do not address issues decided by the
WALKER v. DVA 6
Veterans Court in its March 16, 2011 decision denying
Walker’s petition for a writ of mandamus and thus are not
properly before this court. For the foregoing reasons, and
because we find that Walker's remaining arguments are
not persuasive, we affirm.