Case: 23-1062 Document: 22 Page: 1 Filed: 03/22/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JOHN F. BROOKS,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-1062
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 22-2149, Judge Coral Wong Pi-
etsch.
______________________
Decided: March 22, 2023
______________________
JOHN F. BROOKS, Tacoma, WA, pro se.
EVAN WISSER, Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, for respondent-appellee. Also represented by BRIAN M.
BOYNTON, WILLIAM JAMES GRIMALDI, PATRICIA M.
MCCARTHY; CHRISTINA LYNN GREGG, BRIAN D. GRIFFIN, Of-
fice of General Counsel, United States Department of Vet-
erans Affairs, Washington, DC.
Case: 23-1062 Document: 22 Page: 2 Filed: 03/22/2023
2 BROOKS v. MCDONOUGH
______________________
Before CHEN, MAYER, and HUGHES, Circuit Judges.
PER CURIAM.
John F. Brooks appeals an order of the United States
Court of Appeals for Veterans Claims (Veterans Court)
denying-in-part and dismissing-in-part his petition for a
writ of mandamus. Brooks v. McDonough, No. 22-2149,
2022 WL 3224506, at *6 (Vet. App. Aug. 10, 2022) (Veterans
Court Decision). We affirm the Veterans Court’s decision
as to the writ of mandamus and dismiss the parts of the
appeal over which we do not have jurisdiction.
BACKGROUND
Mr. Brooks served in the United States Army from Feb-
ruary 1966 to May 1971. SAppx. 27. 1 In August 2018, Mr.
Brooks submitted a claim alleging clear and unmistakable
error (CUE) in a June 1972 rating decision that granted
service connection for a thigh muscle injury and a skin con-
dition. SAppx. 165–166. On June 19, 2020, the regional
office (RO) denied both CUE claims, SAppx. 78–83, and Mr.
Brooks filed a notice of disagreement (NOD) and appealed
to the Board of Veterans’ Appeals (Board), SAppx. 71.
On January 25, 2022, the Board found CUE with re-
spect to Mr. Brooks’s skin condition claim and remanded
the issue of CUE with respect to the thigh muscle claim.
SAppx. 40. As to the thigh muscle claim, the Board ex-
plained that it could not determine whether a CUE as to
the original rating occurred because the June 1972 rating
decision relied on an x-ray report, and the photocopy of that
report in the claims file was almost completely illegible.
SAppx. 47. The Board thus ordered the Department of
1 “SAppx.” citations herein refer to the appendix
filed concurrently with Respondent’s brief.
Case: 23-1062 Document: 22 Page: 3 Filed: 03/22/2023
BROOKS v. MCDONOUGH 3
Veterans Affairs (VA) to “make all reasonable efforts to lo-
cate and associate with the claims file th[e] full x-ray image
report.”
Id.
On April 11, 2022, Mr. Brooks filed a petition for a writ
of mandamus with the Veterans Court regarding his thigh
muscle claim. Veterans Court Decision,
2022 WL 3224506,
at *1. Mr. Brooks asked the Veterans Court to: (1) compel
the Board to issue a decision on his August 2018 CUE
claim, (2) compel the RO to complete, in an expedited man-
ner, its efforts to comply with the Board’s January 2022 re-
mand instructions, and (3) compel the Board to provide an
estimate on when it would issue a decision.
Id.
On May 11, 2022, the RO notified Mr. Brooks that at-
tempts to locate his 1972 x-ray records were unsuccessful.
SAppx. 32–35. On May 17, 2022, the RO issued a decision
finding no CUE in its original 1972 rating decision as to
Mr. Brooks’s thigh muscle injury. SAppx. 27–30. Mr.
Brooks did not file a NOD in response.
On August 10, 2022, the Veterans Court denied-in-part
and dismissed-in-part Mr. Brooks’s mandamus petition.
Veterans Court Decision,
2022 WL 3224506, at *6. To the
extent Mr. Brooks desired a new Board decision in addition
to the Board’s January 25, 2022 decision, the court held
that Mr. Brooks must file a timely NOD of the May 2022
rating decision to obtain a Board decision on his CUE mo-
tion. Id. at *4. Likewise, the court ruled that any sought-
for estimate on when the Board would issue a decision was
contingent on first filing a NOD. Id. The court also dis-
missed as moot Mr. Brooks’s request to compel the RO to
complete the Board’s remand instructions because the RO
completed those instructions when it issued the May 2022
decision. Id. at *5. Mr. Brooks timely appealed.
DISCUSSION
The scope of our review of a Veterans Court decision is
limited. We have jurisdiction to “review and decide any
Case: 23-1062 Document: 22 Page: 4 Filed: 03/22/2023
4 BROOKS v. MCDONOUGH
challenge to the validity of any statute or regulation or any
interpretation thereof.”
38 U.S.C. § 7292(c). Except to the
extent that an appeal presents a constitutional issue, we
may not “review (A) a challenge to a factual determination,
or (B) a challenge to a law or regulation as applied to the
facts of a particular case.”
Id. § 7292(d)(2).
With respect to the court’s denial of a mandamus peti-
tion, we “may not review the factual merits of the veteran’s
claim” but may “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) (emphasis added). We may de-
termine “whether the petitioner has satisfied the legal
standard for issuing the writ.”
Id. In order to prevail on
his request for mandamus, Mr. Brooks was required to
show that: (1) he has a clear and indisputable legal right
to the writ, (2) he has no other adequate avenue of obtain-
ing relief, and (3) the writ is warranted under the circum-
stances. See Cheney v. U.S. Dist. Ct. for D.C.,
542 U.S. 367,
380–81 (2004). We review the Veterans Court’s denial of a
petition for a writ of mandamus for abuse of discretion.
Lamb v. Principi,
284 F.3d 1378, 1384 (Fed. Cir. 2002).
Mr. Brooks appears to argue that the Veterans Court
erred in determining that his claims were subject to the
Appeals Modernization Act (AMA), and that under the
AMA, Mr. Brooks was first required to file a NOD to appeal
the RO’s May 2022 decision back to the Board. Appellant's
Informal Br. 1. To the extent Mr. Brooks challenges
whether his claims are subject to the AMA, that is beyond
our jurisdiction. To the extent Mr. Brooks challenges that,
under the AMA, he is not required to submit a new NOD
in the face of the RO’s May 2022 rating decision, he fails to
explain why. See 38 U.S.C § 7105 (“Appellate review shall
be initiated by the filing of a notice of disagreement”); see
also 38 C.F.R. 20.800(a) (explaining how contents of a no-
tice of disagreement affects docketing priority at the
Board); see also Military-Veterans Advoc. v. Sec’y of
Case: 23-1062 Document: 22 Page: 5 Filed: 03/22/2023
BROOKS v. MCDONOUGH 5
Veterans Affs., 7 F4th 1110, 1119 (Fed. Cir. 2021) (“The
third lane is a direct appeal to the Board, which a claimant
initiates by filing a NOD”).
We determine that the Veterans Court did not abuse
its discretion or commit legal error in denying Mr. Brooks’s
petition. The Veterans Court denied parts of Mr. Brooks’s
mandamus petition because he failed to show that he had
no other adequate avenue in obtaining a Board decision on
his CUE claims and an estimate as to when the Board
would render that decision. Id. at *4. The Veterans Court
determined that Mr. Brooks may obtain the requested re-
lief by appealing the RO’s rating decision in the normal
course to the Board by filing a NOD, which renders man-
damus improper. The Veterans Court’s finding of an ade-
quate alternative avenue of relief is neither an abuse of
discretion nor a legal error. Moreover, we note that Mr.
Brooks may still file a NOD before May 2023 and obtain
the Board review he requests. See
38 U.S.C. §7105(b)(1)(A)
(“A notice of disagreement shall be filed within one year
from the date of the issuance of the notice of the decision of
the agency of original jurisdiction”).
Mr. Brooks also requested mandamus to compel the RO
to comply with the Board’s January 2022 remand instruc-
tions. Id. at *1. The Veterans Court dismissed because it
found that the RO had already complied with the remand
and issued a rating decision. Id. at *5. We find no abuse
of discretion or legal error in the Veterans Court’s holding.
Mr. Brooks also argues that the Veterans Court vio-
lated due process by denying panel review under Veterans
Court Rule 35. See Appellant’s Informal Br. 7. However,
we lack jurisdiction to review the Veterans Court’s denial
of panel review, and denying panel review is not a consti-
tutional violation. Arensen v. Principi,
300 F.3d 1353, 1360
(Fed. Cir. 2002) (no due process violation with respect to
Veterans Court denial of panel review or full court review
of single-judge decisions).
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6 BROOKS v. MCDONOUGH
CONCLUSION
We have considered Mr. Brooks’s remaining arguments
but find them unpersuasive. We affirm the Veterans
Court’s decision as to the writ of mandamus. For those is-
sues in Mr. Brooks’s appeal for which we lack jurisdiction,
we dismiss.
AFFIRMED-IN-PART AND DISMISSED-IN-PART
COSTS
No costs.
