Keel v. McDonough

Case: 22-1565 Document: 20 Page: 1 Filed: 08/11/2022 NOTE: This disposition is nonprecedential.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.