Case: 23-1439 Document: 20 Page: 1 Filed: 09/08/2023
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RICHARD A. PROCEVIAT,
Claimant-Appellant
v.
DENIS MCDONOUGH, SECRETARY OF
VETERANS AFFAIRS,
Respondent-Appellee
______________________
2023-1439
______________________
Appeal from the United States Court of Appeals for
Veterans Claims in No. 20-5432, Chief Judge Margaret C.
Bartley, Judge Michael P. Allen, Judge Scott Laurer.
______________________
Decided: September 8, 2023
______________________
RICHARD A. PROCEVIAT, Elma, Manitoba, Canada, pro
se.
ELINOR JOUNG KIM, Commercial Litigation Branch,
Civil Division, United States Department of Justice, Wash-
ington, DC, for respondent-appellee. Also represented by
BRIAN M. BOYNTON, ERIC P. BRUSKIN, PATRICIA M.
MCCARTHY; AMANDA BLACKMON, Y. KEN LEE, Office of
Case: 23-1439 Document: 20 Page: 2 Filed: 09/08/2023
2 PROCEVIAT v. MCDONOUGH
General Counsel, United States Department of Veterans
Affairs, Washington, DC.
______________________
Before PROST, HUGHES, and STOLL, Circuit Judges.
PER CURIAM.
Richard A. Proceviat appeals an order of the U.S. Court
of Appeals for Veterans Claims (“Veterans Court”) dismiss-
ing in part and denying in part his petition for a writ of
mandamus. For the reasons below, we affirm.
BACKGROUND
Mr. Proceviat served in the U.S. Army from June 1970
to February 1972 and is a veteran of the Vietnam Era.
Mr. Proceviat seeks service connection for rheumatoid ar-
thritis (“RA”). In September 2016, Mr. Proceviat sought to
reopen a previous denial of service connection for RA. In
connection with his re-opened claim, in March 2018 the De-
partment of Veterans Affairs (“VA”) provided Mr. Proceviat
with a medical examination. Based on the results of that
examination, the VA Regional Office (“RO”) determined
that Mr. Proceviat’s RA “was not incurred in or aggravated
by military service.” S.A. 93. 1 The VA denied his claim on
April 2, 2018.
In January 2019, Mr. Proceviat filed a notice of disa-
greement. Objecting to the VA medical examiner’s opinion,
Mr. Proceviat sought copies of the examiner’s curriculum
vitae (“CV”), the examination notes, and “the specific med-
ical literature that was relied upon in the VA examiner’s
negative nexus opinion.” S.A. 89. He also requested an
independent medical opinion (“IMO”). S.A. 91.
After receiving no response over a year and a half later,
on July 27, 2020, Mr. Proceviat petitioned the Veterans
1 “S.A.” refers to the supplemental appendix submit-
ted with the government’s informal brief.
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PROCEVIAT v. MCDONOUGH 3
Court for a writ of mandamus to compel the VA to address
his unfulfilled requests: namely, to provide the requested
CV, examination notes, medical literature, and IMO. S.A.
85–86. The Veterans Court ordered the VA to respond.
The Secretary accordingly provided Mr. Proceviat with the
medical examiner’s CV but did not address any of his other
requests. The VA nonetheless argued its response ren-
dered the mandamus petition moot. S.A. 83.
On September 23, 2020, the Veterans Court agreed and
dismissed Mr. Proceviat’s mandamus petition. S.A. 76–77.
On October 26, 2020, Mr. Proceviat sought reconsideration,
noting that he had requested more than the examiner’s CV
alone. S.A. 73–75. On reconsideration, the Veterans Court
withdrew its September 2020 order and directed the VA to
address the outstanding requests. S.A. 70–72. The VA
mailed Mr. Proceviat a letter stating that no examination
notes exist and provided Mr. Proceviat with a link to a gen-
eral online repository of medical literature. S.A. 63. The
court deemed this response sufficient. On December 17,
2020, it dismissed this portion of the mandamus petition,
and it additionally denied the petition with respect to the
IMO request because Mr. Proceviat could seek an IMO
through the ordinary appellate process. S.A. 58–60. A
three-judge panel adopted the single-judge order. S.A. 47–
48.
On September 16, 2021, this court vacated and re-
manded to the Veterans Court. Proceviat v. McDonough,
Case No. 2021-1810, 2021 WL 4227718 (Fed. Cir. Sept. 16,
2021). We held that the Veterans Court erred in dismiss-
ing the petition as moot because the VA had not provided
Mr. Proceviat with the specific medical literature relied on
by the examiner, and therefore, he “ha[d] not been provided
all his requested relief.” Id. at *2. Regarding Mr. Proce-
viat’s IMO request, we determined that the petition could
have been requesting either “a writ compelling the VA to
provide him an [IMO],” or it “may have been requesting a
writ compelling the VA to issue a decision on his request
for an [IMO].” Id. at *3. While there was no legal error
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4 PROCEVIAT v. MCDONOUGH
under the first interpretation, “the Veterans Court failed
to apply the correct legal framework under the second in-
terpretation.” Id. We explained that “[w]hen a mandamus
claim is based on unreasonable delay, the Veterans Court
must apply the six-factor [TRAC] test,” and failure to do so
is legal error. 2 Id. at *2. Our decision remanded for the
Veterans Court to apply the TRAC factors to the unreason-
able delay claim. Id. at *3.
On remand, the VA provided a series of updates on its
response to Mr. Proceviat’s requests, including its response
to a new request made in a February 2022 supplement to
the petition, see S.A. 31, requesting the pre-opinion instruc-
tions provided to the medical examiner:
(1) the medical literature on which the March 2018
VA examiner relied no longer exists in any format
and no one has a copy of the material; (2) petitioner
was notified on February 7, 2022, that his request
for an IMO was denied; (3) on March 22, 2022, pe-
titioner “expressed disagreement” with VA’s denial
of his request for an IMO; (4) petitioner was pro-
vided a copy of the March 2018 VA examiner’s “pre-
opinion” instructions; (5) petitioner’s appeal con-
cerning his claim for service connection for rheu-
matoid arthritis will continue to proceed as a
legacy appeal at the Board; and (6) petitioner’s ap-
peal was “formally placed on the Board’s docket on
August 11, 2020.”
S.A. 11–12. Based on these updates, on September 20,
2022, the Veterans Court issued an order that dismissed in
2 The “TRAC” factors stem from a decision in Tele-
communications Research & Action Center v. FCC, 750
F.2d 70 (D.C. Cir. 1984), which we adopted as the appro-
priate standard for assessing mandamus petitions alleging
unreasonable delay, Martin v. O’Rourke, 891 F.3d 1338,
1348 (Fed. Cir. 2018).
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PROCEVIAT v. MCDONOUGH 5
part and denied in part the mandamus petition. S.A.
10–15.
The Veterans Court dismissed as moot the CV, exami-
nation notes, IMO, and pre-opinion instruction requests.
S.A. 13. The court denied the petition as related to medical
literature because that information is no longer obtainable
and “if petitioner wishes to contest the adequacy of the
March 2018 VA examination report relying on the fact that
the underlying medical literature cannot be found, that is
an issue that he can raise either during the administrative
appeal process or in an appeal to this Court of an adverse
Board decision relying on that evidence.” S.A. 13. Finally,
regarding potential unreasonable delay in addressing
Mr. Proceviat’s IMO request, the court considered the
TRAC factors and concluded “they do not weigh in peti-
tioner’s favor.” S.A. 14–15. A three-judge panel adopted
the single-judge order. S.A. 2–3. Mr. Proceviat appeals.
DISCUSSION
Although this court has limited jurisdiction to review
decisions of the Veterans Court, 38 U.S.C. § 7292, we may
“decide all relevant questions of law, including interpreting
constitutional and statutory provisions,” Mote v. Wilkie,
976 F.3d 1337, 1340 (Fed. Cir. 2020) (quoting 38 U.S.C.
§ 7292(d)(1)). Mootness is a question of law that falls
within our jurisdiction. We also have jurisdiction to review
the Veterans Court’s decision “whether to grant a manda-
mus petition that raises a nonfrivolous legal question.”
Beasley v. Shinseki, 709 F.3d 1154, 1158 (Fed. Cir. 2013).
I
We agree with the Veterans Court that Mr. Proceviat’s
requests for the medical examiner’s CV, notes from the
March 2018 examination, and the examiner’s pre-opinion
instructions have each been rendered moot. A case be-
comes moot when a claimant receives all his requested re-
lief. Mote, 976 F.3d at 1341. We conclude that Mr.
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6 PROCEVIAT v. MCDONOUGH
Proceviat has now received adequate responses to his re-
quests.
First, the VA has provided Mr. Proceviat with the CV
for the medical examiner who performed his March 2018
examination. S.A. 80. Because he received the requested
CV, this issue is moot. Second, with respect to the exami-
nation notes, the VA explains that “any notes that the ex-
aminer made were provided in the medical opinion itself,”
and “there are not any additional notes from the March
2018 examiner.” S.A. 63. As Mr. Proceviat received all rel-
evant notes as part of the medical opinion and the VA has
no knowledge or possession of any additional notes made
by the medical examiner in relation to the March 2018
exam, this issue is also moot. Third, the record reflects that
Mr. Proceviat received the pre-opinion instructions given
to the medical examiner. S.A. 31–32. Mr. Proceviat’s re-
ceipt of the pre-opinion instructions renders this request
moot as well.
We affirm the Veterans Court’s determination that
Mr. Proceviat received his requested relief in relation to
these requests.
II
Mr. Proceviat principally argues on appeal that an
IMO is required for the VA to decide his service-connection
claim and that “[t]he proper remedy for an inadequate
exam is for the Board to remand the case with an order for
the VA to provide an adequate exam or explain why it will
not or cannot do so.” Informal Br. 4, 6 (citing 38 C.F.R.
§ 3.328; 38 U.S.C. § 5103A(d); 38 U.S.C. § 7109; 38 C.F.R.
§ 20.901(a), (d); Barr v. Nicholson, 21 Vet. App. 303, 311
(2007)). We recognized in our prior opinion that Mr. Proce-
viat’s petition could be interpreted either as “requesting a
writ compelling the VA to provide him an [IMO]” or as “re-
questing a writ compelling the VA to issue a decision on his
request for an [IMO].” Proceviat, 2021 WL 4227718, at *3.
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PROCEVIAT v. MCDONOUGH 7
Regarding the first interpretation, which appears to be
Mr. Proceviat’s primary focus in this appeal, we previously
explained that “mandamus is available only when a peti-
tioner lacks adequate alternative means to obtain the de-
sired relief” and noted that “Mr. Proceviat is free to seek an
[IMO] in his direct appeal.” Id. Since our prior opinion,
the RO has at long last notified Mr. Proceviat that his re-
quest for an IMO has been denied. See S.A. 17, 41. The
Board has advised the Secretary that it will address the
denial of Mr. Proceviat’s IMO request when it adjudicates
the underlying service-connection claim. S.A. 17.
Mr. Proceviat’s appeal is currently pending before the
Board. 3 Because the Board will address the IMO request
in the direct appeal, Mr. Proceviat will be afforded an al-
ternative means to pursue relief and is therefore not enti-
tled to a writ compelling the VA to provide him an IMO.
We see no clear error in the Veterans Court’s denial of the
petition in this respect.
Regarding the second interpretation and any potential
unreasonable delay in issuing a decision on his IMO re-
quest, the VA has finally, as noted above, provided
Mr. Proceviat with a decision: on February 7, 2022, the RO
denied the request. S.A. 41. We recognized in our earlier
decision that “the VA could moot [the unreasonable delay]
portion of the petition by issuing a decision on Mr. Proce-
viat’s request for an [IMO].” Proceviat, 2021 WL 4227718,
at *3. We conclude that the issue is indeed now moot. Un-
der our case law, the issuance of a decision on the matter
at hand renders moot a petition challenging unreasonable
delay. Martin, 891 F.3d at 1349. While we sympathize
with Mr. Proceviat for the undue time it took the VA to
3 Mr. Proceviat’s appeal has been pending before the
Board since August 11, 2020. S.A. 17. It is our hope that
the Board will expeditiously address Mr. Proceviat’s IMO
request as part of the underlying claim.
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8 PROCEVIAT v. MCDONOUGH
address his repeated unresolved IMO requests, we are con-
strained to dismiss as moot this portion of his petition.
III
Finally, we discern no clear error in the Veterans
Court’s denial of the petition as related to Mr. Proceviat’s
request for the medical literature on which the March 2018
examiner relied. We previously found this issue had been
improperly dismissed as moot because the VA had not pro-
vided Mr. Proceviat with his requested relief. Proceviat,
2021 WL 4227718, at *2. On remand, the VA explained
that the examiner relied on information in an online repos-
itory that is constantly refreshed with new literature, med-
ical studies, and other scientific findings. S.A. 40. For that
reason, the VA contends that “based on the ephemeral na-
ture of the literature,” it is impossible to obtain the exact
literature relied on at the time of the examination. S.A. 40.
As the Veterans Court noted, it is a “truly bizarre principle
that an agency can rely on evidence that now no longer ex-
ists to deny a veteran a benefit.” S.A. 13. In any event, the
VA rests on its position that the information is simply un-
obtainable. Whether that is the case presents a factual dis-
pute outside our limited jurisdiction. See 38 U.S.C.
§ 7292(d)(2). Although Mr. Proceviat has still not received
the requested literature, we agree with the Veterans Court
that the issue may be raised either during an administra-
tive appeal or in relation to a Board decision relying on the
unavailable evidence. Because of the availability of alter-
native relief, the Veterans Court appropriately denied the
mandamus petition.
CONCLUSION
For the foregoing reasons, the decision of the Veterans
Court is affirmed.
AFFIRMED
COSTS
No costs.