Case: 22-1565 Document: 20 Page: 1 Filed: 08/11/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
DAVID O. KEEL,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2022-1565
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 21-7019, Judge Grant Jaquith.
______________________
Decided: August 11, 2022
______________________
DAVID O. KEEL, Hualapai, AZ, pro se.
DANIEL F. ROLAND, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, WILLIAM JAMES GRIMALDI, PATRICIA M.
MCCARTHY; AMANDA BLACKMON, Y. KEN LEE, Office of Gen-
eral Counsel, United States Department of Veterans Af-
fairs, Washington, DC.
______________________
Case: 22-1565 Document: 20 Page: 2 Filed: 08/11/2022
2 KEEL v. MCDONOUGH
Before CHEN, CUNNINGHAM, and STARK, Circuit Judges.
PER CURIAM.
David O. Keel appeals a decision of the United States
Court of Appeals for Veterans Claims (Veterans Court) dis-
missing his petition for a writ of mandamus. Because Mr.
Keel obtained the relief sought in his petition, we dismiss.
BACKGROUND
Mr. Keel served in the Army from May to December,
1980. SAppx. 140. 1 Since 1981, Mr. Keel has sought disa-
bility benefits from the Department of Veterans Affairs
(VA), and his requests have been repeatedly denied. See
SAppx. 132–33; SAppx. 138; SAppx. 140.
In 2011, Mr. Keel filed a claim for benefits, seeking
(1) to reopen previously denied service connection claims
for bilateral hip disorder, ischemic heart disease, gas-
troesophageal reflux disease (GERD), and low back disor-
der; (2) new benefit claims based on non-GERD
gastrointestinal disorder, and sinus disorder; and (3) bene-
fits based on total disability based on individual unemploy-
ability (TDIU). See SAppx. 124–31. His claims were
denied by the VA regional office (RO). See SAppx. 124–25.
Mr. Keel appealed the RO’s denial to the Board of Vet-
erans’ Appeals (Board). SAppx. 87–89. As part of the ap-
peal, he participated, via video conference, in a Board
hearing in October 2017. SAppx. 45–86. In a July 2018
order, the Board denied Mr. Keel’s request to reopen ser-
vice connection claims for bilateral hip disorder, ischemic
heart disease, and GERD. SAppx. 28–29. However, the
Board granted Mr. Keel’s request to reopen a claim for ser-
vice connection for low back disorder and remanded that
claim and his non-GERD gastrointestinal disorder, sinus
1 “SAppx.” citations herein refer to the appendix
filed concurrently with Respondent’s brief.
Case: 22-1565 Document: 20 Page: 3 Filed: 08/11/2022
KEEL v. MCDONOUGH 3
disorder, and TDIU claims for further record development.
SAppx. 36–37; see also SAppx. 28–29.
Mr. Keel then appealed the Board’s July 2018 order to
the Veterans Court, alleging perceived errors in the tran-
script of the October 2017 Board hearing. See SAppx. 25.
The Secretary conceded error because there was no evi-
dence Mr. Keel was advised of his right to review the hear-
ing transcript and seek correction of any perceived errors.
The Secretary requested that the Veterans Court remand
to the Board so Mr. Keel could seek correction. See
SAppx. 26. In a February 2020 decision, the Veterans
Court accepted the Secretary’s concession of error, vacated
the Board’s July 2018 order with respect to Mr. Keel’s bi-
lateral hip disorder, ischemic heart disease, and GERD
claims, and remanded “to allow Mr. Keel to submit a re-
quest for correction of any perceived [transcription] errors.”
SAppx. 26–27.
In view of the Veterans Court’s 2020 decision, a letter
was mailed to Mr. Keel in March 2021 requesting that he
provide a response within 30 days to seek corrections of any
perceived errors in the transcript of the 2017 Board hear-
ing. SAppx. 11. The VA also scheduled Mr. Keel for exam-
inations to obtain medical opinion evidence regarding the
etiology of his low back disorder, non-GERD gastrointesti-
nal disorder, sinus disorder, and TDIU claims. Id.
In an order dated October 7, 2021, the Board again de-
nied Mr. Keel’s request to reopen service connection claims
for bilateral hip disorder, ischemic heart disease, and
GERD because he did not submit new and material evi-
dence sufficient to reopen these previously denied claims.
SAppx. 8; SAppx. 10; SAppx. 13–16. The Board also de-
nied service connection for his non-GERD gastrointestinal
disorder, sinus disorder, low back disorder, and TDIU
claims. SAppx. 10; SAppx. 17–22. In reaching these deci-
sions, the Board found that Mr. Keel did not respond with
corrections to the transcript for the 2017 Board hearing,
declined the VA examinations, and did not respond to let-
ters sent in March 2019 and July 2019 requesting
Case: 22-1565 Document: 20 Page: 4 Filed: 08/11/2022
4 KEEL v. MCDONOUGH
information regarding, and authorization for the VA to ob-
tain, private medical records related to treatment Mr. Keel
had reported. See SAppx. 11–12.
In September 2021, before the Board issued its October
2021 order, Mr. Keel filed a petition for a writ of mandamus
with the Veterans Court alleging delay and seeking an or-
der compelling adjudication of his remanded service con-
nection claims. SAppx. 147, 149–53. He also averred that
he had medical evidence supporting his claims. See SAppx.
151–52. On December 30, 2021, the Veterans Court dis-
missed Mr. Keel’s mandamus petition, explaining that be-
cause the Board’s October 2021 order adjudicated his
claims and he appealed that decision to the Veterans
Court, he had already obtained the relief requested in his
mandamus petition. Keel v. McDonough, No. 21-7019,
2021 WL 6143662, at *1 (Vet. App. Dec. 30, 2021); see also
SAppx. 141–43 (docket for Mr. Keel’s merits appeal in Vet-
erans Court in Case No. 21-2070 (Apr. 7, 2022)). His peti-
tion was therefore moot. This appeal followed.
DISCUSSION
“A case becomes moot—and therefore no longer a ‘Case’
or ‘Controversy’ for purposes of Article III [of the Constitu-
tion]—when the issues presented are no longer live.” Al-
ready, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (cleaned
up). If no court is capable of granting the relief a petitioner
seeks, no live controversy remains. Kingdomware Techs.,
Inc. v. United States, 579 U.S. 162, 169 (2016).
Here, there is no live controversy as to the subject mat-
ter of Mr. Keel’s mandamus petition because the Veterans
Court cannot order the Board to do what it has already
done: adjudicate Mr. Keel’s service connection claims for
bilateral hip disorder, ischemic heart disease, and GERD. 2
2 The Veterans Court interpreted Mr. Keel’s manda-
mus petition as seeking adjudication of his bilateral hip
disorder, ischemic heart disease, and GERD claims. Keel,
Case: 22-1565 Document: 20 Page: 5 Filed: 08/11/2022
KEEL v. MCDONOUGH 5
Mr. Keel does not dispute that the Board’s October
2021 order adjudicated these claims. He acknowledges
that he “ha[s a] 2nd docket[ed] court of appeals veterans
claim with [the] same issue, still pending dispute of [Record
Before the Agency].” See Appellant’s Reply Br. 1. He in-
stead argues that the Board’s October 2021 order “denied
me all issues claiming I refused comp exams, not in file,
false claims by [Board] ALJ,” Appellant’s Br. 2; alleges that
the VA never contacted him to supplement the record with
medical examinations, Appellant’s Reply Br. 1–2; and prof-
fers allegedly missing facts to support of his claims, see id.;
Appellant’s Supp. Br. 1–6. Mr. Keel’s arguments are be-
yond the scope of his mandamus petition, as they challenge
the merits of the October 2021 order. The appropriate av-
enue for Mr. Keel’s merits-based arguments is direct ap-
peal to the Veterans Court—which he has already
initiated. See SAppx. 141–43.
Because the Board provided the relief sought and no
live controversy remains with respect to the mandamus pe-
tition, 3 we dismiss this appeal as moot.
DISMISSED
COSTS
No costs.
No. 21-7019, 2021 WL 6143662, at *1. To the extent he also
sought adjudication of his non-GERD gastrointestinal dis-
orders, sinus disorder, low back disorder, and TDIU claims,
see SAppx. 153, there likewise is no live controversy be-
cause the Board already adjudicated those claims.
SAppx. 7–22.
3 Mr. Keel’s appeal does not raise any constitutional
issues. See Appellant’s Br. 2.