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
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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

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                                          -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
