Eugene C. Smalls v. Eric K. Shinseki, Secretary of Veterans Affairs

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
EUGENE C. SMALLS,
Claimant-Appellant,
v.
ERIC K. SHINSEKI, SECRETARY OF VETERANS
AFFAIRS,
Respondent-Appellee.
__________________________
2011-7089
__________________________
Appeal from the United States Court of Appeals for
Veterans Claims in case no. 10-4297, Judge William A.
Moorman.
__________________________
Decided: July 12, 2011
__________________________
EUGENE C. SMALLS , of Seminole, Florida, pro se.
CARRIE A. D UNSMORE , Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for respondent-
appellee. With her on the brief were TONY WEST, Assis-
tant Attorney General, JEANNE E. D AVIDSON , Director,

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SMALLS v. DVA 2
and H AROLD D. LESTER, JR., Assistant Director. Of coun-
sel on the brief were MICHAEL J. TIMINSKI, Deputy Assis-
tant General Counsel and LARA K. EILHARDT, Attorney, of
United States Department of Veterans Affairs, of Wash-
ington, DC.
__________________________
Before LINN , D YK , and PROST, Circuit Judges.
PER CURIAM.
Eugene C. Smalls appeals from an order of the United
States Court of Appeals for Veterans Claims (“Veterans
Court”) denying a petition for a writ of mandamus. We
affirm.
I. BACKGROUND
Mr. Smalls served as a Marine on active duty from
June 1978 to December 1980. Thereafter, the Depart-
ment of Veterans Affairs (“VA”) regional office (“RO”)
granted Mr. Smalls a service connection for bilateral pes
planus with bilateral ankle pain and plantar fasciitis.1 In
January 2005, Mr. Smalls obtained another service con-
nection for bilateral pes plano valgus and tarsal tunnel
syndrome.2 When granting this second service connec-
tion, the RO combined it with the first service connection
and labeled the entire disability “bilateral pes planus/pes
plano valgus with bilateral ankle pain, plantar fasciitis
and tarsal tunnel syndrome.” The RO then rated the
combined disability fifty percent disabling.
1 Pes planus and plantar fasciitis are ailments as-
sociated with the arches of the feet.
2 Bilateral pes plano valgus and tarsal tunnel syn-
drome are also foot ailments.

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SMALLS v. DVA 3
Mr. Smalls appealed the RO’s decision to the Board of
Veterans’ Appeals (“Board”), asserting, among other
things, that he is entitled to one compensable rating for
the injuries associated with his first service connection
and a separate compensable rating for the injuries associ-
ated with his second service connection. On September
22, 2010, the Board issued two decisions addressing the
various arguments raised by Mr. Smalls. One decision
addressed sixteen issues, including whether the injuries
underlying the first and second service connections should
be combined and treated as one disability. In this deci-
sion, the Board adjudicated some of Mr. Smalls’s claims
and remanded others back to the RO. One of the re-
manded issues was whether the first and second service
connections should be treated as one disability given the
fact that Mr. Smalls’s failed to attend a VA podiatric
examination scheduled for March 2004.
The other Board decision addressed three claims, in-
cluding claims for an increased rating for knee disabilities
stemming from Mr. Smalls’s foot ailments. The Board
remanded all three matters to the RO so that the RO
could provide Mr. Smalls with an opportunity for a video
conference hearing.
After the two Board decisions issued, Mr. Smalls filed
a petition for a writ of mandamus with the Veterans
Court. In this petition, Mr. Smalls asked the court to
grant him “an initial rating of 30% or more for service-
connected pes planus/or pes plano valgus type III bilat-
eral” and asserted that the initial rating was “not based
on factual medical evidence.” Mr. Smalls also requested
the court “to issue a writ of mandamus compelling the
local [RO] and the [Board] to render a [d]ecision [on his
clear and unmistakable error (“CUE”) claim for an earlier
effective date for pes planus] without and further delay.”

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SMALLS v. DVA 4
The Veterans Court denied the writ on February 11,
2011, explaining that Mr. Smalls had previously appealed
claims from the September 22, 2010 Board decision to the
Veterans Court and that other claims from that decision
were pending before the VA. The Veterans Court ex-
plained that Mr. Smalls had, inter alia, argued “that VA
has unreasonably delayed issuing a decision on his [CUE]
claim.” Smalls v. Shinseki, No. 10-4297, slip op. at 1 (Vet.
App. Feb. 11, 2011). Because Mr. Smalls had other ad-
ministrative procedural avenues available to him, the
Veterans Court held that granting an extraordinary
means of relief such as a writ of mandamus would be
inappropriate. Mr. Smalls subsequently appealed to this
court.
II. D ISCUSSION
On appeal, Mr. Smalls contends that the Veterans
Court wrongfully denied his petition for a writ of manda-
mus. Our review of Veterans Court decisions is limited.
We may review “the validity of a decision of the [Veter-
ans] Court on a rule of law or of any statute or regulation
. . . or any interpretation thereof (other than a determina-
tion as to a factual matter) that was relied on by the
Court in making the decision.” 38 U.S.C. § 7292(a).
Absent a constitutional issue, however, we lack jurisdic-
tion to “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).
We have jurisdiction over the issue of whether the
Veterans Court properly denied a petition for writ of
mandamus when the veteran failed exhaust his adminis-
trative rights. See Hargrove v. Shinseki, 629 F.3d 1377,
1379 (Fed. Cir. 2011). We review the Veterans Court’s
denial of a petition for a writ of mandamus for abuse of

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SMALLS v. DVA 5
discretion. Lamb v. Principi, 284 F.3d 1378, 1384 (Fed.
Cir. 2002).
“The remedy of mandamus is a drastic one, to be in-
voked only in extraordinary situations.” Kerr v. U.S. Dist.
Court, 426 U.S. 394, 402 (1976); see Cheney v. U.S. Dist.
Court, 542 U.S. 367, 380 (2004) (referring to the writ as
“one of ‘the most potent weapons in the judicial arsenal’”).
A court should not issue a writ of mandamus if the party
seeking the writ has “other adequate means to attain the
relief he desires,’—a condition designed to ensure that the
writ will not be used as a substitute for the regular ap-
peals process.” Cheney, 542 U.S. at 380-81.
The merits issues raised by Mr. Smalls on appeal de-
rive from the September 22, 2010 Board decisions. All
claims addressed in these decisions were either adjudi-
cated by the Board or remanded back to the RO for fur-
ther consideration. Mr. Smalls appealed some of the
Board’s findings to the Veterans Court. One of the issues
relied on extensively by Mr. Smalls in this appeal,
whether the first and second service connections should
be treated as one disability, was remanded to the RO. In
other words, many of the claims at issue in this appeal
are currently pending in other venues. Indeed, Mr.
Smalls is taking advantage of the administrative options
available to him to adjudicate his claims in a manner that
does not involve the drastic remedy of a writ of manda-
mus. In such a situation, where “other adequate means to
attain the [desired] relief” exists, granting a writ of man-
damus is inappropriate. See id. at 380. Accordingly, the
Veterans Court properly denied the petition.
In support of his petition for writ of mandamus, Mr.
Smalls asserts numerous fact-based arguments. In
particular, Mr. Smalls argues that the Board failed to

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SMALLS v. DVA 6
properly address his claim for an earlier effective date for
his service-connected disabilities; the Board provided an
incorrect disability rating; the Veterans Court did not
provide Mr. Smalls with a “Statement of the Case” for his
request to reopen claim; the VA’s past ratings decisions
are based on incomplete and unsupported medical opin-
ions; and the ten years it has taken to adjudicate Mr.
Smalls’s claim is unreasonable.
As mentioned, we lack jurisdiction to review “a chal-
lenge to a factual determination” or “a challenge to a law
or regulation as applied to the facts of a particular case”
absent a constitutional issue. 38 U.S.C. § 7292(d)(2).
Resolving the issues listed in the previous paragraph
would involve finding facts and applying the law to facts.
Therefore, we lack jurisdiction over these matters.
In sum, Mr. Smalls has administrative options avail-
able to him at the VA which enable him to raise his
arguments and have his claims adjudicated if he so
chooses. Because Mr. Smalls has these administrative
options at his disposal, a writ of mandamus is inappropri-
ate.
Mr. Smalls also complains that the VA has unduly de-
layed in adjudicating his CUE claim for an earlier effec-
tive date for his service-connected pes planus and asks us
to issue a writ of mandamus that “directs, directly or
indirectly, the VA to stop delaying and handle [his] CUE
claim.” However, in his mandamus papers, he has not
established any current undue delay that would warrant
issuing a writ. We are confident that the VA will resolve
Mr. Smalls’s CUE claim in a timely manner.

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SMALLS v. DVA 7
For the foregoing reasons, the Veterans Court did not
abuse its discretion in denying Mr. Smalls’s petition for
writ of mandamus. Accordingly, we affirm.
COSTS
Each party shall bear its own costs.
AFFIRMED

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