       NOTE: This disposition is nonprecedential.


  United States Court of Appeals
      for the Federal Circuit
                ______________________

               WILLIAM F. MORRIS,
                Claimant-Appellant

                           v.

    ROBERT A. MCDONALD, SECRETARY OF
           VETERANS AFFAIRS,
              Respondent-Appellee
            ______________________

                      2016-1573
                ______________________

   Appeal from the United States Court of Appeals for
Veterans Claims in No. 14-2862, Judge Lawrence B.
Hagel.
               ______________________

                Decided: June 14, 2016
                ______________________

   WILLIAM F. MORRIS, Pulaski, TN, pro se.

    ANAND RAVI SAMBHWANI, Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, for respondent-appellee. Also
represented by BENJAMIN C. MIZER, ROBERT E.
KIRSCHMAN, JR., CLAUDIA BURKE; Y. KEN LEE, JONATHAN
KRISCH, Office of General Counsel, United States De-
partment of Veterans Affairs, Washington, DC.
2                                      MORRIS   v. MCDONALD




                 ______________________

 Before TARANTO, CLEVENGER, and CHEN, Circuit Judges.
PER CURIAM.
    William F. Morris seeks review of the decision of the
United States Court of Appeals for Veterans Claims
(Veterans Court), dismissing for lack of jurisdiction his
request for the Veterans Administration (VA) to return an
overpayment in the amount of $8,857, and affirming a
decision of the Board of Veterans’ Appeals (Board), which
had denied his claim for an earlier effective date for total
disability based on individual unemployability (TDIU).
Morris v. McDonald, No. 14-2862, 2016 WL 147901 (Vet.
App. Jan. 13, 2016). We find that the Veterans Court
properly determined that it lacked jurisdiction over the
overpayment issue. We dismiss Mr. Morris’ remaining
arguments for lack of jurisdiction, and to the extent that
his appeal makes out a constitutional claim over which we
would have jurisdiction, we reject that claim.
                       BACKGROUND
     Mr. Morris served on active duty in the U.S. Army
from October 1966 to September 1969. He first sought a
TDIU claim in an October 1989 personal hearing. At that
time, the VA had determined that Mr. Morris had service-
connected disabilities from a right thigh gunshot wound,
with muscle damage, and post-traumatic stress disorder
(PTSD), with a 70 percent combined rating. In March
1990, the VA regional office (RO) denied his TDIU claim,
and he appealed to the Board. In May 1991, the Board
affirmed the March 1990 rating decision, and Mr. Morris
appealed to the Veterans Court, which affirmed the
Board’s decision in August 1992. Mr. Morris did not
appeal this decision. Although he later attempted to
reopen the May 1991 Board decision based on clear and
unmistakable error (CUE), the Board denied his request,
MORRIS   v. MCDONALD                                    3



and we affirmed. Morris v. Nicholson, 122 F. App’x 473,
476 (Fed. Cir. 2005).
    On July 28, 1993, Mr. Morris requested an increased
rating for PTSD, stating that he had “lost another job.”
Although the RO and the Board initially denied his claim
throughout several successive proceedings, the Board
eventually granted Mr. Morris TDIU in July 2000, and in
May 2001, the RO assigned his effective date for TDIU of
July 28, 1993. Mr. Morris submitted a Notice of Disa-
greement, requesting an earlier effective date for TDIU of
October 1989. In February 2007, the RO denied Mr.
Morris’ request for the earlier effective date, and the
Board affirmed in January 2012. In June 2013, the
Veterans Court vacated the January 2012 Board decision
and remanded on the issue of an earlier effective date
because the Board had failed to consider Mr. Morris’
service-connected PTSD. In August 2014, the Board
found that the VA received Mr. Morris’ claim for in-
creased rating for PTSD in July 1993, and “[n]o evidence
has been presented which shows that [Mr. Morris] was
unemployable as a result of service-connected disability
within the one year period prior to July [] 1993.” Morris,
2016 WL 147901, at *3. In January 2016, the Veterans
Court affirmed, noting that the Board found no evidence
of a worsening of his TDIU within the one year period
prior to July 1993. Mr. Morris appeals this decision.

    Meanwhile, the VA discovered an overpayment issue
because Mr. Morris had been receiving a dependency
allowance for his daughter, who was over the age of 18
and simultaneously receiving Chapter 35 educational
benefits. In September 2003, the RO sent Mr. Morris a
letter notifying him of the overpayment issue, and Mr.
Morris requested a waiver from recovery of the overpay-
ment. After several proceedings before the RO and the
Board, in January 2012, the Board denied his request for
waiver, finding that although both Mr. Morris and the VA
were both at fault for the overpayment, there was no
4                                      MORRIS   v. MCDONALD



indication that return of the overpayment would result in
financial hardship, the original purpose of the overpay-
ment (educational assistance) was no longer applicable,
failure to make restitution would result in unfair gain,
and there was no evidence that Mr. Morris relied on the
overpayment to his detriment. The Veterans Court
affirmed in June 2013, denying Mr. Morris’ request to
waive recovery of the overpayment in the amount of
$8,857.
    In its June 2013 decision, the Veterans Court re-
viewed both the earlier effective date issue and the over-
payment issue, but it remanded to the Board only on the
earlier effective date issue. However, rather than wait for
the Board to complete its review of the earlier effective
date issue on remand, Mr. Morris elected to appeal imme-
diately the Veterans Court’s ruling on the overpayment
issue, and we affirmed in December 2013. Morris v.
Shinseki, 549 F. App’x 973, 976 (Fed. Cir. 2013). Mr.
Morris later attempted to reopen the Board’s January
2012 decision on the overpayment issue based on CUE,
but the Board dismissed his claim in August 2014, finding
that its January 2012 decision was subsumed by the
decisions of the Veterans Court and the Federal Circuit.
The Board noted that any challenge would have to be
done through a motion for extraordinary relief from the
Veterans Court.
    Subsequently, when the earlier effective date issue re-
turned to the Veterans Court in January 2016, Mr. Morris
also presented argument on the overpayment issue in his
reply brief to the Veterans Court. The Veterans Court
declined to address the overpayment issue because it was
not properly on appeal and it was improperly raised for
the first time in his reply brief. Mr. Morris now seeks
reversal of the Veterans Court on both the overpayment
issue and the denial of an earlier effective date. Mr.
Morris contends that the VA should return the overpay-
ment of $8,857 because the benefit-of-the-doubt rule
MORRIS   v. MCDONALD                                       5



should favor the veteran when both the VA and the
veteran are at fault. As for the denial of the earlier
effective date, he argues that the Veterans Court did not
consider his increase in PTSD rating to 70% and an
attorney letter describing the loss of another job.
                        DISCUSSION
    Our jurisdiction to review decisions of the Veterans
Court is limited. We have jurisdiction “to review and
decide any challenge to the validity of any statute or
regulation or any interpretation thereof . . . and to inter-
pret constitutional and statutory provisions, to the extent
presented and necessary to a decision.”           38 U.S.C.
§ 7292(c). Except when a veteran brings a constitutional
challenge, we lack jurisdiction to review any “challenge to
a factual determination” or any “challenge to a law or
regulation as applied to the facts of a particular case.” 38
U.S.C. § 7292(d)(2).
    Mr. Morris asserts that his appeal falls under our ju-
risdiction because it (1) addresses the validity or interpre-
tation of a statute or regulation and (2) raises a
constitutional challenge.
    We first consider whether Mr. Morris’ appeal address-
es any determination by the Veterans Court on the validi-
ty or interpretation of a statute or regulation. Mr. Morris
asserts that his appeal challenges the validity or interpre-
tation of 38 U.S.C. § 5107(b) because he seeks return of
the overpayment based on the benefit-of-the-doubt rule.
Section 5107(b) directs that the VA shall give the benefit
of the doubt to the veteran when there is “an approximate
balance of positive and negative evidence regarding any
issue material to the determination of a matter.” Mr.
Morris contends that the Veterans Court erred by not
considering his request to return the overpayment. The
Veterans Court applied its own jurisdictional statute, 38
U.S.C. § 7252(a), to find that it lacked jurisdiction to
review the overpayment issue because this issue was not
6                                       MORRIS   v. MCDONALD



properly on appeal. Morris, 2016 WL 147901, at *4. We
find that the Veterans Court correctly found that it lacked
jurisdiction under § 7252(a) because the Board decision on
review before the Veterans Court did not cover the over-
payment issue, which we note was already decided by the
RO, the Board, the Veterans Court, and this court in the
previous proceeding. See Morris, 549 F. App’x at 975. We
affirm the Veterans Court’s finding of lack of jurisdiction
over the overpayment issue. See Andre v. Principi, 301
F.3d 1354, 1363–64 (Fed. Cir. 2002).

     Even if Mr. Morris’ arguments on the overpayment is-
sue before the Veterans Court could be construed as an
appeal of the Board’s denial of his claim for CUE and a
motion for extraordinary relief, we lack jurisdiction over
that challenge because the Veterans Court “simply ap-
plied the jurisprudential rule that ‘an issue not raised by
an appellant in its opening brief . . . is waived.’” Id. at
1363 (quoting Becton Dickinson & Co. v. C.R. Bard, Inc.,
922 F.2d 792, 800 (Fed. Cir. 1990)). “[A]ll that transpired
in the Veterans Court” was that Mr. Morris did “not
brief[] the CUE claims that had been decided by the BVA
and the court then applying the abandonment rule.” Id.
The Veterans Court’s application of the abandonment rule
to find waiver of an issue is not a claim within our juris-
diction. See id. at 1363–64.

    Mr. Morris also appeals under 38 C.F.R. § 3.400(o)(2),
which provides that an effective date can be awarded for
up to one year before the date of a claim for increased
compensation. The Veterans Court found that “an in-
crease in a veteran’s service-connected disability must
have occurred during the one year prior to the date of the
veteran’s claim in order to receive the benefit of an earlier
effective date.” See Gaston v. Shinseki, 605 F.3d 979, 984
(Fed. Cir. 2010). Again, Mr. Morris does not challenge the
validity or interpretation of this regulation, but the Vet-
erans Court’s application of the regulation to the facts of
MORRIS   v. MCDONALD                                     7



his case because he contends that his increased PTSD
rating of 70% and an attorney letter describing the loss of
Mr. Morris’ job merits an earlier effective date. We lack
jurisdiction over such a challenge.
     Second, we consider Mr. Morris’ contention that his
appeal involves a constitutional challenge based on due
process for both the overpayment issue and the earlier
effective date. To the extent that we have jurisdiction
over this challenge, we find that Mr. Morris’ claims lack
merit because he received notice and a fair opportunity to
be heard. “Due process of law has been interpreted to
include notice and a fair opportunity to be heard.” Cush-
man v. Shinseki, 576 F.3d 1290, 1296 (Fed. Cir. 2009).
On the overpayment issue, the RO denied Mr. Morris’
request for a waiver in October 2008, the Board affirmed
in January 2012, and the Veterans Court affirmed in
June 2013. In December 2013, we affirmed, holding that
Mr. Morris received fair notice and an opportunity to be
heard because he had been given several opportunities to
challenge the overpayment issue before the VA, the
Board, and the Veterans Court. Morris, 549 F. App’x at
975. As we noted then, “[w]hatever due process requires,
it requires no more than that.” Id.
    On the denial of his request for an earlier effective
date for TDIU, Mr. Morris does not dispute that the RO,
the Board, and the Veterans Court adjudicated his claim.
He also does not argue that he was denied notice or an
opportunity to be heard, but instead alleges that the
Veterans Court failed to consider certain evidence in
ruling against him. Mr. Morris is really arguing the
merits of his claim rather than raising a separate consti-
tutional contention. His “characterization of that ques-
tion as constitutional in nature does not confer upon us
jurisdiction that we otherwise lack.” Helfer v. West, 174
F.3d 1332, 1335 (Fed. Cir. 1999). We see no violation of
any constitutional principle in the record below.
8                                     MORRIS   v. MCDONALD



                      CONCLUSION
     We find that the Veterans Court properly found that
it lacked jurisdiction to decide the overpayment issue. As
for Mr. Morris’ remaining arguments, we lack jurisdiction
to consider his challenges to the Veterans Court’s rulings
on abandonment and an earlier effective date. To the
extent that Mr. Morris raises a constitutional claim over
which we would have jurisdiction, we reject this claim.
                      AFFIRMED
                         COSTS
    No Costs.
