Single Judge Application, Prejudice, Arneson v. Shinseki, 24 Vet.App. 379, 389 (2011)

excerpt from decision below:
"It is also noted that Ms. Howard's assertion that without mandamus she
will be unable to assert prejudice on appeal indicates a misunderstanding of the law. See Arneson v. Shinseki, 24 Vet.App. 379, 389 (2011) (finding prejudice when error "could have altered" the Board's determinations); cf. Shinseki v. Sanders, 129 S. Ct. 1696, 1706 (2009) (noting appellant's failure to specify "what specific additional evidence" he might have or seek to obtain as a consideration in whether the appellant had been prejudiced by, in that case, notice error)."

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Designated for electronic publication only
UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS
NO. 11–1642
SHERRY L. HOWARD, PETITIONER,
V.
ERIC K. SHINSEKI,
SECRETARY OF VETERANS AFFAIRS, RESPONDENT.
Before KASOLD, Chief Judge.
ORDER
Note: Pursuant to U.S. Vet. App. R. 30(a),
this action may not be cited as precedent.
On May 24, 2011, veteran Sherry Howard through counsel filed a petition
for extraordinary
relief in the nature of a writ of mandamus to compel the Secretary to
excise paragraph 4(d) of VHA
Directive 2008-071 and compel the assistant regional counsel of Dorn VA
Medical Center to inform
Ms. Howard's VA physician of his absolute discretion to prepare a medical
opinion at Ms. Howard's
request.
The relevant facts involving her petition are undisputed. On February 16,
Ms. Howard sent
a letter to a VA physician requesting that he prepare a medical opinion on
her behalf. On April 8,
the assistant regional counsel of Dorn VA Medical Center informed Ms.
Howard that he had
instructed the VA physician not to prepare such an opinion. In his
response, the assistant regional
counselcitedto VHADirective2008-071,paragraph4(d),and,
paraphrasingthedirective,statedthat
"VA providers do not have access to all relevant information to make such
determinations plus it
presents a conflict of interest." Petition at Exhibit 3.
In her petition, Ms. Howard contends that (1) she has an absolute right to
seek an opinion
from her treating physician free of VA staff interference in accordance
with 38 U.S.C. § 5103A(b)-
(d) and 38 U.S.C. § 6303(d) and (2) there is no adequate means to protect
this right other than the
requested injunctive relief. In his answer, the Secretary argues that (1)
there is no absolute right to
a VA medical opinion upon a claimant's request, and (2) the appellate
process remains open to Ms.
Howard.
"[T]he remedyof mandamus is a drastic one, to be invoked onlyin
extraordinarysituations."
Kerr v. U.S. Dist. Court for N.D. Cal., 426 U.S. 394, 402 (1976). In order
for a writ to issue, (1) the
petitioner must lack adequate alternative means to obtain the desired
relief, thus ensuring that the
writ is not used as a substitute for the appeals process, (2) the
petitioner must demonstrate a clear
and indisputable right to the writ, and (3) the court must be convinced,
given the circumstances, that
the issuance of a writ is warranted. See Cheney v. U.S. Dist. Court of D.C
., 542 U.S. 367, 380-82
(2004). Here, Ms. Howard fails to demonstrate that mandamus is warranted.


The duty to assist, while absolute in the sense that it does exist,
nevertheless is tempered by
the fact that only "reasonable efforts . . . in obtaining evidence
necessary to substantiate" a claim are
required of the Secretary by statute. 38 U.S.C. § 5103A(a)(1); see Golz v.
Shinseki, 590 F.3d 1317,
1320 (Fed. Cir. 2010) ("VA is not required to assist a claimant in
obtaining identified records 'if no
reasonable possibility exists that such assistance would aid in
substantiating a claim.'" (quoting 38
U.S.C. § 5103A(a)(2))). Whether the Secretary has fulfilled his duty to
assist is a factual
determination, dependent on factors such as VA resources and the
importance of the information
sought to substantiating the claim. See Nolen v. Gober, 14 Vet.App. 183,
184 (2000) (Board's
determination as to whether Secretary fulfilled the duty to assist is a
finding of fact).
As such, Ms. Howard has the right to request the Secretary's assistance in
obtaining evidence
and the right to have any denial of assistance reviewed by the Board.
However, because Ms.
Howard's objections to the Secretary's level of assistance can be
addressed on appeal, she does not
demonstrate a right to a writ of mandamus. See Cheney, supra; Harris v.
Nicholson, 19 Vet.App.
345, 348 (2005) ("[A]n extraordinary writ cannot be used as a substitute
for an appeal, even though
hardship may result from delay.").
It is also noted that Ms. Howard's assertion that without mandamus she
will be unable to assert prejudice on appeal indicates a misunderstanding of the law. See Arneson v. Shinseki, 24 Vet.App. 379, 389 (2011) (finding prejudice when error "could have altered" the Board's determinations); cf. Shinseki v. Sanders, 129 S. Ct. 1696, 1706 (2009) (noting appellant's failure to specify "what specific additional evidence" he might have or seek to obtain as a consideration in whether the appellant had been prejudiced by, in that case, notice error).
On consideration of the foregoing, it is
ORDERED that the May 24, 2011, petition for extraordinary relief in the
nature of a writ of
mandamus is DENIED.
DATED: August 11, 2011
BY THE COURT:
BRUCE E. KASOLD
Chief Judge
Copies to:
Mark R. Lippman, Esq.
VA General Counsel (027)
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