Error: Bad annotation destination
NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
04-7116
MELTON JACKSON, JR.,
Claimant-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellee.
___________________________
DECIDED: March 1, 2005
___________________________
Before MICHEL, Chief Judge,∗ GAJARSA, and LINN, Circuit Judges.
Opinion for the court filed by Circuit Judge Gajarsa. Dissenting opinion filed by Circuit
Judge Linn.
PER CURIAM.
Melton Jackson, Jr. appeals from the judgment of the United States Court of
Appeals for Veterans Claims (“Veterans’ Court”) in favor of the government, dismissing
Jackson’s contention that his service-connected schizophrenia is entitled to an effective-
date of November 1991, and affirming the decision of the Board of Veterans Appeals
∗
Paul R. Michel assumed the position of Chief Judge on December 25, 2004.
setting the effective-date of the entitlement at September 24, 1997. Jackson v. Principi,
No. 01-1975, 2004 WL 1045921 (Vet. App. Apr. 16, 2004) (“Jackson”).
Jackson grounds his argument of entitlement to a November 1991 effective-date
on the basis that equity prevents the government from deeming his 1991 informal claim
abandoned. His premise is that the government failed to provide him sufficient notice of
the claim abandonment provisions in applicable federal regulations. The Veterans’
Court determined that Jackson waived this argument. Because we find jurisdiction
established, and that the Veterans’ Court properly determined that Jackson waived his
abandonment argument, we affirm.
I.
Jackson served on active duty in the military from November 1973 to January
1976. Jackson at *1. In 1981, he filed a formal application to the Veteran’s
Administration (“VA”) for disability benefits, claiming a connection between a nervous
condition and his military service. The VA denied his application, observing that
Jackson’s service record showed no connection between the claimed nervous condition
and Jackson’s military service. Jackson did not appeal.
In 1986, Jackson tried to reopen his 1981 claim using medical records spanning
August 1975 to June 1985. At this point he claimed that his nervous condition included
schizophrenia. In May 1987, the VA notified Jackson that it could not reopen his claim,
as there was still no evidence showing that his condition was incurred during, or
aggravated by, his military service. Jackson did not appeal.
In 1991, Jackson mailed letters to President George H. W. Bush and Senator
Strom Thurmond, copies of which were forwarded to a VA regional office (“RO”). The
04-7116
-2-
letters sought assistance in establishing service-connected disability benefits. In
December 1991, the RO replied to Jackson’s letter in the following terms:
In 1981, you filed for service-connection for a paranoid reaction. This
claim was denied as there was no indication, or notation made in your
service medical records, of treatment for a nervous condition. You were
notified of that decision by letter of October 23, 1981. In the absence of a
timely appeal, our decision became final.
You may reopen your claim at any time by submitting new and material
evidence showing that these conditions were incurred in or aggravated by
military service. … [describing relevant evidence] … Upon receipt of such
evidence, your claim will be carefully considered.
The December 1991 letter made no mention of regulations controlling whether a
claim is abandoned for lack of prosecution. That regulation, 38 C.F.R. § 3.158(a),
provides in relevant part:
[W]here evidence requested in connection with an original claim, a claim
for increase or to reopen or for the purpose of determining continued
entitlement is not furnished within 1 year after the date of request, the
claim will be considered abandoned. After the expiration of 1 year, further
action will not be taken unless a new claim is received. Should the right to
benefits be finally established, pension, compensation, dependency and
indemnity compensation, or monetary allowance under the provisions of
38 U.S.C. chapter 18 based on such evidence shall commence not earlier
than the date of filing the new claim.
38 C.F.R. § 3.158(a) (emphasis added).
There is no evidence Jackson ever responded to the RO’s December 1991 letter.
But Jackson kept writing. On September 24, 1997, the RO received a letter
Jackson had sent to Senator Strom Thurmond, again seeking assistance in prosecuting
his claim of service-connected schizophrenia. In October 1997, the RO denied this
claim. Jackson appealed this denial.
On May 1, 1999, a VA examiner reported Jackson’s illness likely began while in
the service. On May 20, 1999, the RO granted Jackson’s claim for service-connected
04-7116
-3-
schizophrenia at a 100% disability rating, effective September 24, 1997. Jackson
appealed that decision to the Board of Veterans Appeals (“Board”), arguing his claim is
entitled to an earlier effective-date.
On August 2, 2001, the Board rejected Jackson’s appeal. It noted the RO’s 1981
and 1987 denials were final, and that Jackson had not replied to the RO’s 1991 denial.
Mentioning Jackson’s 1991 and 1997 letters, the Board stated that “even if such letters
may be construed to be informal claims under 38 C.F.R. § 3.155, the fact remains that
nexus opinion relating the veteran’s schizophrenia to his service was not received until
May 1999.” In re Jackson, No. 99-23 875A, at 12 (Bd. Vet. App. Aug. 2, 2001). The
Board concluded Jackson’s entitlement “arose” on May 1, 1999, the date of his VA
medical examination, and was entitled to an effective date no earlier than September
24, 1997, the date of his reopened claim. Id. Jackson appealed.
Before the Veterans’ Court, Jackson made a series of arguments. First, in his
opening brief, Jackson argued his November 1991 letter was “a valid informal claim”
that required the VA to forward him a formal application under 38 C.F.R. § 3.155(a)
before the “one-year filing requirement of a formal claim” could run. In its opposition the
government correctly observed, as the Veterans’ Court found, that there was no such
requirement regarding a formal application. Jackson, 2004 WL 1045921 at *4. The
government further argued that the December 1991 RO letter satisfied all VA notice
obligations. In reply, Jackson argued the RO’s December 1991 letter did not satisfy the
VA’s notice obligations because “[t]he letter gave the impression that [Jackson’s] claim
remained indefinitely viable so long as new and material evidence were ultimately
submitted.” Therefore, Jackson argued, the government could not apply the
04-7116
-4-
abandonment provisions of Rule 3.158(a) to the December 1991 denial letter. Jackson
characterizes this argument from his reply brief to the Veterans’ Court as the “equitable
estoppel” argument in this appeal.
The Veterans’ Court rejected this contention, deeming Jackson’s equitable
argument waived.
The Court declines to address [Jackson’s notice argument] because it was
raised for the first time in his reply brief. See Costantino v. West, 12 Vet.
App. 517, 521 (1999); Henderson v. West, 12 Vet. App. 11, 18-19 (1998);
Carbino v. Gober, 10 Vet. App. 507, 511 (1997), aff'd, 168 F.3d 32, 34
(Fed. Cir. 1999). However, the Court notes that the appellant has not
cited any authority to support his assertion that VA was required to notify
him that his claim would be deemed abandoned if he failed to submit
additional evidence within one year; nor has he articulated how § 3.158(a)
would be obviated by any such failure to notify. See [Morris v. Derwinski,
1 Vet. App. 260, 265 (1991) (holding that claimants are deemed to have
knowledge of requirements of § 3.158(a) and that “abandonment pursuant
to 38 C.F.R. § 3.158(a) cannot be set aside or waived on grounds of
alleged ignorance of regulatory requirements”)].
Jackson, 2004 WL 1045921, at *4.1 The Veterans’ Court affirmed the Board’s decision.
With this appeal Jackson asks the court to determine that the VA is “estopped
from considering the November 1991 informal claim as abandoned in light of the VA’s
failure to advise Mr. Jackson of the one-year abandonment provision and in view of its
misleading correspondence of December 1991.” Our jurisdiction is controlled by 38
U.S.C. § 7292.
II.
Section 7292 provides, in relevant part,
After a decision of the United States Court of Appeals for Veterans
Claims is entered in a case, any party to the case may obtain a
1
The Veterans’ Court adopted this parenthetical description of Morris from its
opinion, Jackson, 2004 WL 1045921, at *3. That is, the Veterans’ Court expressly
relied on the due process holding of Morris.
04-7116
-5-
review of the decision with respect to the validity of a decision of
the Court [1] on a rule of law or [2] of any statute or regulation … or
any interpretation thereof (other than a determination as to a factual
matter) that was relied on by the Court in making the decision.
38 U.S.C. § 7292(a) (2000), amended by Veterans Benefits Act of 2002, Pub. L. No.
107-330, § 402(a), 116 Stat. 2820, 2832. The statute further provides that this court
“may not 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,” except to the extent that an
appeal “presents” a constitutional issue. Id. § 7292(d)(2). Section 7292 provides this
court jurisdiction to review whether the Veterans’ Court applied the correct legal
standard for waiver.
III.
It is a general rule of appellate procedure that an appellant waives issues or
arguments raised for the first time in a reply brief. See Carbino v. West, 168 F.3d 32,
34 (Fed. Cir. 1999); Becton Dickinson & Co. v. C.R. Bard, Inc., 922 F.2d 792, 800 (Fed.
Cir. 1990); accord 16A C.A. Wright, A.R. Miller, and E.H. Cooper, Federal Practice and
Procedure § 3974.3 (3d ed. 1999) (“[I]t is clearly settled that the appellant cannot raise
new issues in a reply brief; it can only respond to arguments raised for the first time in
the appellee’s brief.”), & n.3 (collecting cases) (“Federal Practice & Procedure”). The
textual basis for the rule is typically taken as Fed. R. App. P. 28(a); in Carbino v. Gober,
10 Vet. App. 507, 511 (1997), the Veterans’ Court rooted this analysis in its Rule of
Practice 28(a)(3) (requiring a statement of issues in the opening brief), analogous to
Fed. R. App. P. 28(a)(5) and Fed. Cir. R. 28(a)(6). This rule furthers the basic purpose
of the appellate system by forcing the appellant to raise all his arguments in a manner
amenable to adversarial testing.
04-7116
-6-
The rule has well-recognized exceptions. In Netword, LLC v. Centraal Corp., 242
F.3d 1347 (Fed. Cir. 2001), this court explained that “[w]hen a potentially material issue
or argument in defense of the judgment is raised for the first time in the appellee’s brief,
fundamental fairness requires that the appellant be permitted to respond” to avoid a
waiver. 242 F.3d at 1356. The commentators agree. See 16A Federal Practice &
Procedure § 3974.3 (explaining the reply is proper where the opponent “has introduced
a new issue or basis for upholding the decision below”) (quoting Michael E. Tigar,
Federal Appeals: Jurisdiction and Practice 356 (2d ed. 1993)); 5 Am. Jur. 2d Appellate
Review § 561 (recognizing court’s discretion, when required by the interests of justice,
to consider issues raised for the first time in reply).
The Veterans’ Court found Jackson’s estoppel argument waived. Jackson
argues the Netword exception applies because not until its opposition brief did the
government contend the VA satisfied all its notice obligations. Consequently, Jackson
argues, fundamental fairness requires he be allowed to respond.
We hold that the Veterans’ Court applied the correct rule of waiver and we affirm
its judgment
Each party will bear its own cost.
04-7116
-7-
NOTE: Pursuant to Fed. Cir. R. 47.6, this disposition
is not citable as precedent. It is a public record.
United States Court of Appeals for the Federal Circuit
04-7116
MELTON JACKSON, JR.,
Claimant-Appellant,
v.
R. JAMES NICHOLSON, Secretary of Veterans Affairs,
Respondent-Appellee.
LINN, Circuit Judge, dissenting.
The Court of Appeals for Veterans Claims (“Veterans’ Court”) refused to consider
Jackson’s estoppel argument presented for the first time in his reply brief, holding that it
had been waived.1 Jackson v. Principi, No. 01-1975, slip op. at 3 (Vet. App. Apr. 16,
2004). I agree that this court has jurisdiction to hear Jackson’s appeal. However, I
disagree with the conclusion reached by the majority that the Veterans’ Court correctly
applied the waiver rule in this case. I therefore respectfully dissent.
Before the Board, Jackson argued that he was entitled to an earlier effective date
of his prior award of compensation, claiming both the benefit of earlier claims to reopen
1
The majority reports that the Veterans’ Court both held this argument
waived and rejected it on the merits. Ante at 5 & n.1. I believe the court’s explicit
statement that it “decline[d] to address” the point makes clear that the argument was not
addressed on the merits, notwithstanding the citation to Morris. To the extent that the
Veterans’ Court did in fact reach the argument on the merits, it would not be waived and
would be before us for review.
and an earlier date of entitlement. The Board did not consider whether Jackson’s 1991
letter constituted an informal claim and did not determine whether that informal claim, if
it existed, had been abandoned. Rather, the Board decided the case on the entitlement
issue, remarking that “the effective date of an award of compensation based on a claim
reopened after final disallowance will be the date of receipt of the claim or the date
entitlement arose, whichever is later.” In re Jackson, No. 99-23 875A, slip op. at 12 (Bd.
Vet. App. Aug. 2, 2001). Specifically, the Board determined that “the veteran’s
entitlement to service connection for schizophrenia arose no earlier than the date of this
medical opinion which first links the veteran’s schizophrenia to his military service, that
is, May 1, 1999.” Id. As to the 1991 letter, among other letters, the Board remarked
that “even if such letters may be construed to be informal claims under 38 C.F.R.
§ 3.155, the fact remains that nexus opinion relating the veteran’s schizophrenia to his
service was not received until May 1999.” Id. Thus, the Board did not consider whether
the 1991 letter constituted an informal claim, nor did it consider whether such a claim
had been abandoned. The Board’s decision was based on the date of entitlement.
As this court explained in Netword, LLC v. Centraal Corp., 242 F.3d 1347, 1356
(Fed. Cir. 2001), “When a potentially material issue or argument in defense of the
judgment is raised for the first time in the appellee’s brief, fundamental fairness requires
that the appellant be permitted to respond, lest the appellate court deem the point
conceded.” The Board never ruled on the effect of the November 1991 letter as an
informal claim, and Jackson had no reason to anticipate the abandonment argument,
even when asserting the pendency of his 1991 claim. Thus, fundamental fairness
requires that Jackson be permitted to respond to the new issue.
04-7116 2
Because I would reverse the Veterans’ Court’s interpretation of the waiver rule to
preclude consideration of the equitable estoppel argument in this case, I would remand
the case to the Veterans’ Court to consider Jackson’s equitable estoppel contention in
the first instance. I express no view as to whether such an argument is tenable against
the government or, if so, whether it has any application to the facts of this case.
04-7116 3